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Prepared for the Brittle Books Project, Preservation Department, Main Library, University of Illinois at Urbana-Champaign by Northern Micrographics Brookhaven Bindery La Crosse, Wisconsin 2012 IOWA CASES ON CONSTITUTIONAL LAW Selected and Edited By CLARENCE MILTON UPDEGRAFF Professor of Law State University of Iowa State University of Iowa College of Law 1928 Return this book on or before the Latest Date stamped below. University of Illinois Library L161-H41 IOWA CASES ON CONSTITUTIONAL LAW Selected and Edited By CLARENCE MILTON UPDEGRAFF Professor of Law State University of Iowa Copyright, 1928 By State University of Iowa PRINTED BY UNIVERSITY MULTIGRAPH DEPARTMENT IOWA CITY, IOWA 1928 '1 TABLE OF CONTENTS S PART I Preliminary Topics Chapter I Making and Integrating Constitutions 1 Section 1. History of the Iowa Constitution 1 Section 2. Relation between Federal and State governments 4 a. The Powers of the State 4 b. The Supremacy of the Federal Government 7 Chapter II Functions of the Judiciary l section 1. The Power to Declare Statutes Unconstitut ional 11 Section 2. The Effect of Unconstitutionality 17 Chapter III The Separation of Sovereign Powers 22 Section 1. In General 22 Section 2. The Legislative Department 24 a. The General Scope of Powers 24 b. General and Special Laws--Uniformity 30 c. The Entitling of Legislative Acts-- Singleness of Subject 33 Section 3. The Executive Department 36 PART II " Provisions for the Protection of Fundamental Rights 765i.3100 xd ii Chapter IV Citizenship, Suffrage and Right to Hold Office 40 Chapter V Freedom of Speech and Press Chapter VI 49 Religion Section 1. Section 2. Religious Freedom Religion as affecting the Com- petency of Witnesses Chapter VII Proced ure in Criminal Prosecutions Chapter VIII Trial by Jury Ciapter IXI Due Process of Law Chapter X Eqcuality of Ri ghts Chapter XI Police Pover Chapter XII Taxation Chapter XIII The Power of Eminent Domain Chapter XIV E. Post Facto Laws Chapter XV Freedom of Contract 54 54 56 60 70 75 85 90 94 100 105 109 iii Chapter XVI The Obligation of Contracts 114 Section 1. What Constitutes Impairment of Rights 114 a. In General 114 b. Change of Lav Affecting Remedy 116 c. Retroactive Laws and Legalizing Acts 118 Section 2. What rights may not be Impaired 124 PART III Special Provisions of the Iowa Constitution Chapter XVII State Debts 130 Chapter XVIII Corporations 137 Chapter II Amendments to the Constitution 144 Chapter DX Education and School Lands 161 Chaptcr XXI. Miscellaneous 167 Section 1. Justices of the Peace 167 Sction 2. Indebtedness of Political Corporations 169 a. Ynat Constitutes indbtedness 169 b. Estoppel 176 Section 3. Vacancies in Office 183 PART I PRELIMINARY TOPICS Chapter I Making and Integrating Constitutions Section I. History of the Iowa Constitution "Iowa was the sixteenth Commonwealth to be ad- mitted into the Union on an equal footing with the original thirteen States* The date of admission was December twenty-eighth, one thousand eight hun- dred and forty-six -- seventy years after the Declaration of Independence. As a part of the Province of Louisiana, the Iowa country was acquired by the United States in 1803. Thus the purchase of Louisiana may be regard- ed as a starting point in the history of Iowa. In 1804 the Iowa country was included in the District of Louisiana. In 1805 the District of Louisiana was organized as the Territory of Louisiana. Then in 1812 the Territory of Louisiana was reorganized as the Territory of Missouri That part of the Territory of Missouri now embraced within the limits of the State of Missouri was admitted into the Union in 1821. Thereupon the Iowa country was left without a local constitutional status until 1834, when it was attached to and made a part of the Territory of Michigan. In 1836 it became a part of the newly organized Territory of Wisconsin Two years later (1838) the independent Territory of Iowa was established on the fourth day of July. The Iowa country was explored by Marquette in 1673, by Lewis and Clark in 1804, by Zebulon M. Pike in 1805, and by Albert M. Lea in 1835. Marquette visited the valley of the Iowa River; the Lewis and Clark expedition passed along western Iowa; Pike explored the west bank of the Mississippi; and Albert M. Lea explored eastern lowa. In 1836 Albert M. Lea published a book entitled Notes on Wisconsin Territory with a Map. On the map and in the text he referred to the country west of the Mississippi as the '"Iowa District'". Iowa, he tells us, was a name suggested to him by the loway River. Thus the name "Iowa" descended from "loway River" through the "Iowa District" and the "Territory of Iowa" to the "State of Iowa". 2 The permanent settcleent of Iowa dates from the early thirties, the Indian title to a portion of the country having been first extinguished in June, 1883 A series of treaties made within a period of ten years secured from the Indians prac- tically the whole of the Iowa country. The population grew by leaps and bounds. Men came here from all parts of the Union. They came from the North, the South, the East, and the Middle West. The increase in the population up to 1846 was as follows: 10,531 in 1836; 22,859 in 1838; 43,112 in 1840; and 102,388 in 1846. Many of the early settlers came to Iowa before the lands had been surveyed and offered for sale. They did not wait for the surveyor and the auctioneer, They staked out "claims" and proceeded to improve them, They built houses and barns and fences; they broke the prairies and cleared the forests. For their mutual protection in making and holding claims they formed "claiii associations" and "land clubs". The constitutions, laws, and resolutions of those extra-legal associations were for the pioneers the "law of the land". The Constitution of the Territory of Iowa was the "act to divide the Territory of Wisconsin and to establish the Territorial Government of Iowa," passed by Congress in 1838. It served as the funda- mental law until the formation of the State govern- ment in 1846. The movement toward the establishment of State government was inaugurated by Governor Lucas who, in 1839, recommended that the Legislative Assembly memaorialize Congress for permission to form a consti- tution. This first recommendation bore no fruit. But in 1840 the question of calling a constitutional convention was submitted to the people, It was voted down by a large majority. Again in 1842 the people opposed the calling of a convention by a decisive vote. It was not until 1844 that a vote was returned by the people in favor of State government. The first constitutional convention met at Iovwa City in October, 1844. It consisted of seventy-two members--fifty-one Democrats and twenty-one Whigs. The Constitution drawn up by this convention was twice submitted to the people in 1845, and twice re- jected by them. The second constitutional convention met at Iowa City in May, 1846. It consisted of but thirty-two members--twenty-two Democrats and ten vWhigs. On August 3, 1846, the Constitution drafted by this convention was ratified by the people by a majority of 456 votes. With this Constitution as the fundamental law lowa was admitted into the Union on December 28, 1846. As early as 1855 the General Assembly of the State provided for an expression of the people relative to the calling of a convention to revise or amend the Constitution of 1846. The majority in favor of such a convention was over eighteen thousand. In November, 1856, delegates were elected; and in January, 1857, the third constitu- tional convention met at lowa City. It was com- posed of thirty-six members--twenty-one Republicans and fifteen Democrats. The Constitution dravwn up by the convention of 1857,..vas ratified by the people in August, 1857, by a majority of 1630 votes. It went into effect September, 1857, upon the proclamation of Governor James W. Grimes. At five different times since its adoption the Constitution of 1857 has booeen amended'/ In 1862 the fllowing proposed amendment was ratified by the people as Section 26 of the Bill of Rights: "'No person shall manufacture for sale, or sell or keep for sale, as a bevorage, any in- toxicating liquors whatever, including ale, wine and beer. The Goneral Assembly shall by law pre- scribe regulations for the enforcoment of the prohibition herein contained, and shall thereby provide suitable penalties for the violation of the provisions hereof." But in 1883 the Supreme Court hold, in the case of Koehler & Lange vs. Hill, that owing to certain irregularities this amendment had not been legally submitted to the people and therefore did not become a part of the Constitution, The first effort to provide for bionnial elections met with a similar fate. A proposed amendment ratified by the people in 1900 as Section 16 of Article XII was held unconstitu- tional by the Supreme Court in the case of State ex rel, Bailey vs. Brookhart. Substantially the same amendment was, however, adopted in 1904 and declared valid by the Supreme Court " Note:- The above is the introduction to Dr. Ben- jamin F. Shambaugh's, "Constitution of Iowa", (1914). It is reproduced here by his permission. An excellent treatise upon the subject is, 'History of the Constitution of Iowa," (1902) also by Dr. Shambaugh. See John F. Sly, Providing for a Constitutional Convention, 19 Iovwa Journal of History and Politics, 3; and Erik McKinley Eriksson, The Framers of the Constitution of 1857, 22 Iowa Journal of History and Politics, 52. Section 2. Relation between Federal and State Govqrnments a. The Powers of the State. PURCZELL v. SMIDT 21 Iowa 540, 543-545 (1866) COLE, J.-...A question as to the constitu- tionality of the act of 1858 is submitted, and it is proper to dispose of that before proceeding to the consideration of the construction of the sta- tute. Article 1, section 22 of our present Consti- tution is the same as our first Constitution was, and is as followers: I'Foreigners, who are or may hereafter become residents of this State, shall onjoy the same rights in respect to the possession, enjoyment and descent of property as native- born citizens ." The particular question made is, whether this clause is a restriction upon the power of the legis- lature for extending the same privileges to other 5 foreigners than those named in this clause, to wit: non-resident foreigners, or whether it sim- ply enables the classes named to enjoy the rights specified and limits the power of the legislature to exclude them. A bare recurrence to the prin- ciples of constitutional construction will afford an unerring answer. In the construction of the United States Constitution, which is a grant of powers, it is a rule that the national legisla- ture can only exercise such powers as are therein expressly granted and such as may be necessary to the complete exorcise of the granted powers. But, in the construction of a State Constitution, it is a rule that the State legislature may exor- cise all rightful legislative powers which are not expressly prohibited or necessarily included in the prohibited powers. Bearing in mind these rules of construction and that the instrument to be construod in a State Constitution, there is no difficulty in detormin- ing the constitutionality of the law of 1858. For the Constitution having provided that rosi- dent foreigners shall enjoy certain rights, it becomes a limit or prohibition upon the legisla- tive power to deprive such foreigners of those rights but is not a restriction upon the legisla- ture as to the granting of like rights or privileges to other foreigners than those named. In other words, the Constitution itself confers upon resident foreigners certain rights, and re- strains the legislature from interfering with them, but it contains no restrictions as to the power of the legislature to confer the same or other rights upon non-resident foreigners. The act of 1858, which simply extends the "Rights in respect to the possession, enjoyment and descent of proporty to others than those named in the Constitution is, therefore, constitutional, since therc is no prohibition as to the exorcise of such power. Pcoile v. Roers, 13 Cal., 159. If this constitutional provision should over be held to confer upon the resident alien the povor and right to transmit his property by descent, as woll as the right to acquiro by descent, the same as native born citizens, such holding would not relieve the appellant nor accomplish the result claimed. Since, by the common law in force and not inconsistent with this constitutional provision, the native born citizen would not transmit his property by descent to an alien, because an alien 6 could not have inhoritable blood; and hence, if the Constitution conferred upon the resident aliens the same right of transmitting property by descent as native born citizens have, oven such construction would not enable them to trans- mit their property by descent to aliens, or to those whose right to inhorit was derived only through aliens. Stomple v. Horminghousor, ante, and authoritics there cited. McGUIRE v. THE CHICAGO, B. & Q. RR. Co. 131 Iowa 340 (1906) Mr. Justice WEAVER (upholding a statute abolish- ing the follow-sorvant rule on railroads, and denying offect to any contract restricting lia- bility or the acceptance of any insurance benefits as a dofcnco to personal injury actions brought against railroads by their employees): "The inquiry to which we arc confined is one of legislative povor alone. It is fundamental in our system of government that all powers not delegated to the United States by the terms of the federal Constitution and its amendments, nor prohibited by it to the States, are reserved to the Statos or to the people. Constitution United States' Amendment 10. Subject to the authority thus expressly or by necessary inforcnce delegated to the federal government, the State has sovereign legislative power over all subjects, except such as are withhold from it by the Constitution of the State itsclf. Boyd v. Ellis, 11 Iova, 97; Sto wart v. Suporvisors, 30 Iowa, 9; Purzoll v. Smidt, 21 Iovwa, 540; Morrison v. Springor, 15 Iowa 324; Boyr v,. Kinnick, 90 Iowa, 74; Hawkoyo v. French, 109 Iowa, 588; Now York v. Miln, 31 U.S. 102 (9 L. Ed. 648); R.R. Co. v.D Dy, 82 Iowa, 312; In re Moador, Fed. Cas. No. 9,375; Wadloigh v. Devolling, 1 Ill. App. 596; Moor v. Voazio, 32 Mo. 343 (52 Am. Dec. 655); Boyman v. Black, 47 Tcx. 558, It is not for the court to inquire or dctcrmine whother a state of facts existed calling for the enactment of the legislation in question. That is for the exclusive consideration of the Logislature If under any possible state of facts the act would be constitutional and valid, the court is bountd to presumne that such condition existed. Munn v. Illinois, 94 U.S. 113 (24 L.Ed. 77); State v. Pcckham, 3 R.I. 289; In ro Ten Hour Law, 24 R.I. 603 (54 Atl. 602).f, Notc:-Se also Dubuque Co. v. Dubuqu and Pacific RR. Co., 4 Greene 1, 2 (1853); Merchants' Union Barb Wire Co. v. rw , 64 oa 275, 278 (.884 7 The above docision was approvced by the Ut S. Supreme Court in Chicago B. & Q. R. Co. v. McGuirc, 219 U.S. 549 (1911., b. The Supremacy of the Federal Government American Express Co. v. Iowa 196 U.S. 133, 141-144, 25 Sup. Ct. 182, 49 L.Ed. 417 (1904) Mr. Justice White (holding invalid the seizure from the express company of an interstate, C.0, D. shipment of intoxicating liquor, undcr an Iowa lawu) "And as, in order to decide the contention that the judgment below rests upon an adequate non-Federal ground, oe must necessarily consider how far the C. 0. D. Shipment was protected by the commorce clause of the Constitution, which is the question on the merits, we pass from the motion to dismiss to the consideration of the rights assorted under the commerce clause of the Constitution. We can best dispose of such asserted rights by a brief reference to some of the controlling adjudications of this court. In Bovnan v. Chicago & N.W.R. Co. 125 U.S. 465, 31 L. od4 700, 1 Intors, Com. Rop, 823, 8 Sup. Ct. Rop. 689, 1062, it was hold that the statutes of Iova forbidding common carriers from bringing intoxicating liquors into the state of Iowa from another state or territory without ob- taining a certificate required by the laws of Iowa was void, as being a regulation of commerce boteoon the states, and, therefore, that those laws did not justify a comron carrier in Illinois from refusing to receive and transport intoxica- ting liquors consigned to a point within the state of IowaJ In Leisy v. Hardin, 135 U.S. 100, 34 L oed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rop. 681, it was held that a law of the state of lowa, for- bidding the sale of liquor in that state, could not be made to apply to liquors shipped from another state into lova, before the merchandise had beeoon delivered in Iowa, and there sold in the original package, without causing the statute to be a regu- lation of commerce, repugnant to the Constitution 8 of the United States. In Rhodes v. Iowa, 170 U.S. 412, 42 L. od. 1088, 18 Sup , Ct. Rep 664, the same doctrine was reiterated, except that it was qualified to the extent called for by the provisions of the act of Congress of August 8, 1891 (26 Stat. at L. 313, chap. 728, U.S. Comp. Stat, 1901, p. 3177), commonly known as the Wilson act. In that case a shipment of in- toxicating liquors had been made into the state of Iowa from another state, and the agent of the ultimate railroad carrier in lowa was proceeded against for an alleged violation of the Iowa lau, because, when the merchandise reached its desti- nation in Iova, he had moved the package from the car in which it had been transported to a freight depot, preparatory to delivery to the consignee. The contention was that, as by the Wilson act, the power of the state operated upon the property the moment it passed the state boundary line; therefore the state of Iowa had the right to for- bid the transportation of the merchandise within the state, and to punish those carrying it therein. This was not sustained. The court declined to express an opinion as to the authority of Congress, under its pojwer to regulate commerce, to delegate to the states the right to forbid the transporta- tion of merchandise from one state to another. It was, however, decided that the Wilson act mani- fested no attempt on the part of Congress to exert such power, but was only a regulation of commerce, since it merely provided, in the case of intoxicating liquors, that such merchandise, when transported from one state to another, should lose its character as interstate commerce upon completion of delivery under the contract of inter- state shipment, and before sale in the original packages. The doctrine of the foregoing cases was ap- plied in Vance v. W.A. Vandercook Co. 170 U.S. 438, 442, 42 L.ed. 1100, 1102, 18 Sup. Ct. Rep, 674, to the right of a citizen of South Carolina to order from another state, for his own use, merchandise, consisting of intoxicating liquors, to be delivered in the state of South Carolina. Coming to test the ruling of the court bclow by the settled construction of the commerce clause of the Constitution, expounded in the cases just reviewed, the error of its conclusion is manifest, Those cases rested upon the broad principle of the freedom of commerce betweoon the states, and of the right of a citizen of one state to freely contract to receive merchandise 9 from another state, and of the equal right of the citizen of a state to contract to send merchandise into other states. They rested, also, upon the obvious want of power of one state to destroy con- tracts concerning interstate commerce, valid in the states where made. True, as suggested by the court below, there has been a diversity of opinion con- cerning the effect of a C. 0. ID. shipment, some courts holding that, under such a shipment, the property is at the risk of the buyer, and there- fore that delivery is completed when the merchan- dise reaches the hands of the carrier for transpor- tation; others deciding that the merchandise is at the risk *f the seller, and that the sale is not completed until the payment of the price, and delivery to the consignee, at the point of destina- tion. But we need not consider this subject. Beyond possible question, the contract to sell and ship was completed in Illinois. The right of the par- ties to make a contract in Illinois for the sale and purchase of merchandise, and, in doing so, to fix by agreement the time when and condition on which the completed title should pass, is beyond question. The shipment from the state of Illinois into the state of lowa of the merchandise consti- tuted interstate commerce. To sustain, therefore, the ruling of the court below would require us to decide that the law of Iowa operated in another state so as to invalidate a lawful contract as to interstate commerce made in such other state; and, indeed, would require us to go yet further, and say that, although, under the interstate commerce clause, a citizen in one state had a right to have merchandise consigned from another state delivered to him in the state to which the shipment was made, yet that such right was so illusory that it only obtained in cases where, in a legal sense, the merchandise contracted for had been delivered to the consignee at the time and place of shipment. When it is considered that the necessary re- sult of the ruling below was to hold that, wherever merchandise shipped from one state to another is not completely delivered to the buyer at the point of shipment so as to be at his risk from that mo- ment, the movement of such merchandise is not interstate commerce, it becomes apparent that the principle, if sustained, would operate materially to cripple, if not destroy, that freedom of com- merce between the states which it was the great purpose of the Constitution to promote. If upheld, 10 the doctrine would deprive a citizen of one state of his right to order merchandise from another state at the risk of the seller as to delivery. It would prevent the citizen-of one state from shipping into another unless he assumed the risk; it would subject contracts made by common carriers, and valid by the laws of the state where made, to the laws of another state; and it would remove from the protection of the interstate commerce clause all goods on consignment upon any condition as to delivery, express or implied. Besides, it would also render the commerce clause of the Constitution inoperative as to all that vast body of transactions by which the products of the country move in the channels of interstate com- merce by means of bills of lading to the shipper's order, with drafts for the purchase price at- tached, and many other transactions essential to the freedom of commerce, by which the complete title to merchandise is postponed to the delivery thereof." Note:-Cf. the Webb-Kenyon Act (U.S. Comp. St. section, 8739) and Clark Distilling Co. v. Wes- tern Md. R. Co., 242 U.S. 11, 37 Sup. Ct. 180, 61 L. Ed. 326, L.R.A. 1917B 1218 in which the act was held constitutional. See Reed Bros. & Co. v. Taylor, 32 Iowa 209 and Carton & Co. v. Illinois C. RR. Co., 59 Iowa 148. 4 * *4** * 11 Chapter II Functions of the Judiciary Section 1. The Power to Declare Statutes Uncon- stitutional. Reed v. Wright 2 Geo. Greene 15, 21-23, 30 32 (1849) Mr. Justice Kinney (holding invalid an act of the legislature providing for the final adjudication of questions pertaining to the title of certain Indian lands by a commission): "'Under our form of government the legislature is not supreme. It is only one of the organs of that absolute sovereignty that resides in the whole body of the people. Like other departments of the government, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the state who transcends his jurisdiction, are utterly void. Taylor v. Porter, 4 Hill, 140. In this country, written constitutions form the basis of the general and state governments. From them, each branch derives its power, confer- ring on each department certain duties, restricting each within certain prescribed and limited sphere of action; the authority thus delegated cannot be passed with impunity. The legislature, as an important integral part of the state organization, derives all its sovereignty from the constitution which created it. It can make laws, but cannot subvert the constitu- tion, which is the written will of the people, the supreme law of the land, and all legislation must be conformable with its provisions, if not, the act does not possess the least virtue or vali- dity whatever. But as members of the legislature, in the discharge of their duties, act under an oath to support the constitution, nothing will be presuned in favor of the unconstitutionality of a law. The violation should be clear and ap- parent before the act should be declared void. And to the judicial department of the government is entrusted the power to decide all questions of con- stitutional law. 12 The act of Congress establishing the ter- ritorial government of isconsin, provided that the legislative power of the territory should ex- tend to all rightful subjects of legislation. The act also provided that the inhabitants of said territory should be entitled to and enjoy all and singular the rights, privileges and advan- tages granted and secured to the people of the territory of the United States, north-west of the river Ohio, by the articles of compact contained in the ordinance of the government of said terri- tory, passed on the 13th day of July, 1787, and should be subject to all the conditions, and restrictions and prohibitions in said articles of compact, imposed upon the people of said ter- ritory. By that solemn instrument it is ordained and declared, among other things, that for extend- ing the fundamental principles of civil and religious liberty which form the basis, wherever these republics, their laws and constitutions, are established, to fix and establish those principles as the basis of all laws, constitutions and govern- ments which for ever shall be formed in said territory, the inhiabitants of said territory shall always be entitled to the benefits of the writ of habeas corpus, and of a trial by jury, of a pro- portionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. All the legislation of the territory of 7isconsin should have been consistent with the principles engrafted into this charter of human rights and civil liberty. The legislature could not curtail any rights conferred upon the people by the ordinance, nor confer any rights withheld. The great landmarks of national liberty, trial by jury, and judicial proceedings according to the course of the common law, so wisely secured to the inhabitants of the territory by the ordi- nance, were insuperable barriers against legisla- tive encroachment. V ith the same propriety might the legislature attempt to take from the citizen the benefit of the writ of habeas corpus as to for- bid the right of trial by jury, and as well deny him religious freedom as to attempt to divest him of his property without judicial proceedings ac- cording to the course of the common law. Hence all legislation in derogation of these rights is unconstitutional and void. But tne ordinance of 1787 further declares, that no man shall be deprived of his liberty or property but by the judgment of his peers or the laws of the land. 13 Law, Blackstone defines to be a rule, not a sudden transient order from a superior to, or concerning a particular person, but something per- manent, uniform and universal. Therefore a parti- cular act of t-e legislature to confiscate the goods of Titius, or attaint hirm of high treason, does not enter into the idea of a municipal law, for the operation of the act is spent upon Titius only, and has no relation to the community in general. It is rather a sentence than a law; and Lord Coke, in commenting upon the celebrated 29th chap. of Magna Charta, says no man shall be deprived, &c., unless it be by the lawful judgment, that is, verdict of equals, or by the law of the land, (to speak it once for all,) by due course and process of law. The phrase, law of the land, is thus defined by an author: "By the law of the land is most clearly intended the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society. Everything which may pass, under the form of an enactment, is not therefore to be con- sidered the law of the land. If this were the case, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, and de- crees and forfeitures in all possible forms, would be the law of the land. Suci a strange construc- tion would render constitutional provisions of the highest importance completely inoperative and void., The adriinistration of justice would be an empty form--an idle ceremony; and judges would sit to execute legislative judgments and decrees, not to declare the law, or administer the justice of the county a....r " "It is necessary to determine, then, whether the court had power and jurisdiction, under the act of the Iowa legislature, to enter the judgments which it did enter, it is not contended that the general laws of the territory gave the jurisdiction, or that it was conferred by anything except the said special act. This act we have shown to be unconst-itutional and void, and it being the only act which attempts to confer authority upon the court to enter the judgments, it is necessary to inquire whether a jurisdiction thus conferred can be exercised, or in other words, whether an uncon- stitutional act can confer jurisdiction at all. In the case of Malbury v. Ladison, 1 Cond., 267, 14 Chief Justice 1Marshall lays down the doctrine in the following clear, pointed and forcible language: ...o...If an act of the legislature repug- nant to the constitution is void, does it, not- withstanding its invalidity, bind the courts and oblige them to give it effect? Or in other words, though it be not law, does it constitute a rule as operative as if it was law? This would be to overtirow in fact, whiat was established. in theory; and would seem at first view an absurdity too gross to be insisted on. It shall, however, re- ceive a more attentive consideration. It is em- phatically the power and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of neces- sity expound and interpret that rule. Ii two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition. to the consti- tution. If bothi the law and the constitution apply to a particular case, so) that tile court must either decide the case coliformably to the law, disregard- ing the constitution, or conformably to the consti- tution, disregaroing the law, tAe court must determine whicl of these conflicting rules govern the case. This is of the very essence of judicial duty. If then the courts are to regard the consti- tution, and thle constitution is superior to any ordinary act of the legislature, the constitution, and not such. ordinary act, must govern the case to which they both a pply.'" McGuire v. Chicago, B. & ~. RR. Co. 131 Iowa 340 3557:357 (106) Mr. Justice Weaver (upholding a statute abolishing the fellow-servant rule on railroads, and deny- ing effect to any con.tract restricting liability or the acceptance of any insurance benefits as a defence to personal injury actions brought against railroads by their employees): "Of course, it must be kept in mind that the police power, like all other powers of the state, is subordinate to the Constitution, and if the Legislature, under the guise of police regulation transgress the express or clearly implied limits drawn by the Constitution the courts will hold the act void and of no effect. But this authori- ty of thle court involves a duty of the most deli- cate and responsible character, and, as we have ~ , c- 15 already said, is to be exercised in no doubtful case. The court is not to substitute its own ideas for those of the Legislature as to the propriety, wisdom, or justice of the statute. It must noc arro gate to itself superior knowledge of the public needs, nor assume to prescribe remedies for public ills. Cases may perhaps be found where this fundamental distinction nas apparently been overlooked, thus affording some measure of support for the propo.ition advanced by counsel that 'the validity of the statute depends upon the question whether it is a measure for the public good.' The adoption of such a rule 1would be to transfer the lawmaking power to the judiciary aind work the utter elimination of the legislative department as a co-ordinate branch of the government. The courts do not sit to re- vise or review legislative action, and if they hold an act invalid it is because the Legislature has failecd to keep within the express or clearly implied limitations of the Constitution. A court has no right to declare an act invalid solely be- cause of unjust and oppressive provisions, or be- cause it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prehibited or suchl rights guaranteed, by the Con- stitution. Except when the Constitution has imposed limits upon the legislative power, it must be considered practically absolute. Neither are the courts at liberty to declare an act void merely because in their judgment it is opposed to the spirit of the Constitution. They must be able to point out the specific provision, expressed or clearly implied from what is expressed, which the act violates. Cooley's Constitutional Limita- tions, chapter 7, Winter v. Jones, 10 Ga. 190 (54 Am. Dec. 379). The duty to keep within the constitutional limits of its jurisdiction is no less binding upon the court than upon the Legisature. It is a settled proposition that the fourteenth amendment to the federal Constitution was not intended to limit or hamper the states in the exercise of their police powers. ugler v. Kansas, 123 U.S. 623 (8 Sup. Ct. 273, 31 L. Ed. 205); In Re IKen- nler, 136 U.S. 436 (10 Sup. Ct. 930, 34 L. Ed. 519); Ex parte Converse, 137 U.S. .624 (11 4up.Ct. 191, 34 L. Ed. 796); Powell v. Iennsylvania, 127 U.S. 678 (8 Sup. Ct., 992, 1257, 32 L. Ed. 253). Considering a statute like our Code, section 2071, the Iinnesota court 16 declares it to be 'a police regulation intended to protect life, person, and property by securing a more careful selection of servants and a more rigid enforcement of their duties by railroad com- panies.' Mikkelson v. Truesdale, 63 Minn. 137 (65 N.'. 2-UJ.Nor iis his protection confined to the employes alone. It tends as well to in- crease the safety of the millions of people and the vast aggregate of property daily transported by these companies, and the public interest is directly subserved and promoted by every reason- able rule or device by which negligence in such business is lessened or prevented. The Ohio court, discussing a similar statute of that state, has said that the liability is not created for the benefit of the employes alone, but has its reason and foundation in public necessity and policy. Railroad Co. v. Span ler, 44 Ohio St. 471 (8 N.E. 467, 58 Am. Rep. 3T. See also, Kane v. Railroad Co., 133 Fed. 681 (67 C.C.A. 653, 68 L.R.A. 788)." Des Moines v. Manhattan Oil Co. 193 Iowa 1096,1117 (1922) Mr. Justice Vleaver (holding constitutional the "Restricted Residence Act"): "There is no presumption against the validity of an act of the legislature. On the contrary, all presumptions are in its favor, and a statute will not be held unconstitutional unless its con- travention of constitutional uaranties is so clear, plain, and palpable as to leave no reason- able doubt on the subject; and where the lanuage is reasonably susceptible of different meanings, the courts will lean to that construction which is coinsistent with its validity. State v. Hutchinson Ice Cream Co., 168 Iowa 1; Barr v. Cardell, 173 Iowa 18; McGuire v. Chicago, B. & Q. R. Co., 131 Iowa 340;-State v. United States Exp. Co., 164 Iowa 112; Brady v. Mattern, 125 Iowa 158; Rodemacher v. Milwaukee & St. P. R. Co., 41 Iowa 297. VWe find nothing in this statute, when reason- ably and properly construed, which denies to the appellees the benefit of their constitutional rights, privileges, and immunities; and upon the conceded and well proven facts, we find the appellant city entitled to the relief prayed for in its petition. 17 The decree below is therefore reversed, and cause remanded to the trial court for a decree in har- mony with the views expressed in this opinion.-- Reversed and Remanded." Note: See Carl H. Erbo, The Judicial Department of the Government as Provided by tle Constitution of Iowa, 23 Iowa Journal of History and Politics, 406. Section 2. The Effect of Unconstitutionality Stajcar v. Dickinson 185 Iowa 49, 54-58 (1918) Mr. Justice Stevens (holding that no recovery may be had for the loss of intoxicating liquor which was shipped in violation of a state law that had previously been held unconstitutional): "Having held the act constitutional, the next cluestions presented are: iat, if any, change resulted, by the above enactment, in the law of this state relative to the s i-pment of intoxicating liquors therein, and wiiat effect must be given to the statute in question, and what, if any, application must be made of Section 2419 to the facts involved? Section 2419, supra, makes the transportation of liquor by common carriers within this state a misdemeanor, except to permit holders who have previously furnished such carrier with a certifi- cate from the clerk of the court of the county issuing the permit to which shipment is made, showing the consignee to be a permit holder. It provides further, howvever, tnat, if the defendant in a prosecution for the violation of this section s1hows, by a preponderance of tie evidence, tnat the character, circumstaices, and contents of the shipment were not known to him, or that the person to whom the shipment was made had complied with the provisions of the mulct law, same will operate as a comiplete defense to such prosecution. It will be observed that this statute does not, in terms, pr ohibit thc common carrier from trans- porting liquor into ~this state, but makes it a misdemeanor for it to do so. The effect, however, of the statute is none the less prohibitive. 18 Section 2421-a, supra, supplements Section 2419, and makes it unlawful for any common car- rier or person to carry intoxicating liquors into the state, or from one point to another within the state, for the purpose of delivering same to any person, company, or corporation therein, except for lawful purposes. This section does not define the term 'lawful purposes,' nor need we, at this tilme, construe or apply the same, as it is not claimed that plaintiff comes within any of the classes designated by statute as specifical- ly excepted from the operation of the staitute; and, if prohibited by Section 2419, the shipment, was illegal. The shipment in question was delivered to dcfendant at Omaha, Nebraska, and shipped there- from to Valley Junction, in this state. A bill of lading was issued, and the shipment was handled in the ordinary manner for handling other freight. The Supreme Court of the United States, in Rhodes v. State of Iowa, 170 U.S. 412 (42 L. Ed. 1088), held Section 2419 unconstitutionalo Al- though non-enforcible, it remained a part of the statute, and by the enactment of the so-called !.ebb-Kenyon Act, became operative anO enforcible the same as though it had not previously been de- clared unconstitutional, or had been enacted by the legislature subsequent to the passage of the law of Congress. State v. United States Exp. Co., 164 Iowa 112; Miller BrewTinU Coo v. Stevens, 102 Iowa 60. The Webb-Kinyon law, which divested intoxica- ting liquors shipped from one state into another in violation of the laws of that state of their interstate character, was passed by Congress afier the decision in Rhodes v. State, supra, and prior to the enactment of Sections 2421-a and 2421-b, supra. The constitutionality of this act was the subject of much controversy among lawyers, until the decisioi of -the Supreme Court of the United States in Clark Distilling Co. v. Tjestern Id. R. Co., 242 U.S. 311, was handed down, on January 5, 1917, holding the law constitutional. 19 The trial court evidently construed Section 2421-b as conferring authority upon common car- riers to transport and deliver intoxicating liquors to persons within this state desiring the same for private consumption; but, in our opinion, the act does not accomplish that purpose. It does no more than provide for and require the keeping of certain records by common carriers at certain offices or stations of the receipt and delivery of intoxicating liquors. The most that can be claimed for the last clause of this section is that it apparently assumes that the individual had the right to have intoxicating liquors shipped and delivered to him for his private consumption. If this right is not denied by statute, the carrier would be com- pelled to receive and transport same, and the effect of the statute under consideration would be, to some extent, to reOulate such shipments. The purpose of the record to be kept is expressed in Section 2421-d. It is to give -ublicity to liquor shipments, and to enable officers charged with the prosecution of violations of the statute prohibi- ting the keeping for sale or slling thereof to obtain information helpful in making proof of the claimed violation. Section 2419 makes it a misdemeanor for a common carrier to transport intoxicating liquor within this state, except for delivery to a lawful permit holder, upon compliance with tie re 1uire- ments therein set forth, and exempts it from penalty of the law, if it is shown by a preponderance of the evidence that the shipment which has been made the basis of a prosecution was to a person who had. complied with the provisions of the mulct law, or when the character of the shipment was unknown to it. The legislature, in the enactment of the latter clause of Section 2421-b, may have assumed that the law as it existed did not prohibit shipments of liquor by common carriers into this state for pri- vate consumption, or that it was without authority to do so. This court, in State v. Vignall, 150 Iowa 650, the opinion in which was filed prior to the enact- ment of the febb-Kinyon law, used language which might indicate that it held the view that the legislature was without power to prohibit the shipment of liquor into this state for personal use. The language used is clearly dictum, and 20 doubtless the writer of the opinion had in mind the decision of the Supreme Court of the United States in Rhoties v. State, supra, declaring Section 2419 in violation of the Federal Consti- tution The effect of the enactment of the 'ebb- Kenyon law, divesting shipments of intoxicating liquors into a state in contravention of the laws thereof of their interstate ch.aracter, had the effect to revive and rendor Sec.ion 2419 opera- tive without re-enactment. otatc v. United SLtates .xp. Co., 164 Iowa 112; :hiller Brewing Co. v. Stevens, 102 Iowa 60. The 7ebb-ci0nyon Act and- S-cetion 2419 were in full force at the time the transactions involved in this case were had, and we have only to determine wht ticr same are appli- cable thereto, and, if so, the effect tihercot. Section 2419, as above stated, makes it a misdemeanor for a common carrier to transport liquor within this state and deliver same to a person not cominl; within one of the exceptions contained ti cerin. This statute muiust be eld to appl- to all. shipments, to whomsoever made, or for wuatever purpose. A com~mon carrier charged with its violation would not be permitte to say in defnnse that the shipment challenged by the prosecution was to a person desirin-g, the liquor for private consumption. The statute makes every shipment a misdemeanor, exccept those to certain persons specifically named and desiniiated therein... ...C.. City of Ames v. Gorbracht 194 Iowa 267, 275-276 (1922) Mr. Justice Faville (holding valid an ordinance of the City of Anes which proibited the con- ducting of moving picture shows etc on Sundays): "It is urged that Section 703 of the statute is unconstitutional, in conferring upon cities and towns the power to prohibit circuses, thicatri- cal exlibitions, and shoows. Section 1 of th: Bill of Riights of our Constitution is as follows: 'All men are, by nature, free and equal, and have certain inalienable rights, among which are tnose of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.' 21 Section 6 is as follows: 'All lawrs of a general nature shall have a uniform operation; t1he genoral assembly shall not grant to any citizen or class of citizens, privi- leges or immunities wnich upon the same terms shall not equally belong to all citizens.R It is contend.d that Section 703 of the Code is in contravention of said provisions of the Constitution, and also of the Fourteenth Amendment to the Constitution of the United* States, and that the same abridges tne privileges and immuni- ties of the appellant, and d.epives him of him of his liberty and property without due process of law, and denies to him the equal protection of the law. The particular point made is that the moviig picture business is a legitimate industry, and that the legislature has no power by statute to confer upon municipalities the power to 'prohibit' sucln business. It will be observed that the sta- tute delegates to municipalities the power to license, regulate, or prohibit certain things. It is unnecesqary for us to determine whether the statute is unconstitutional in conferring upon municipalities the power to 'prohibit' a business that, in and of itself, is legitimate and unob- jectionable. The statute confers upon municipali- ties te power to enact ordi- nances in respect to -ertain speciiie businesses, and in regard to said specified businesses the municipalities are clothed with autLority to act in three ways. They may (1) license, (2) regulate, or (5) prohibit. The ordinance in question makes no attempt to prohibit the business of conducting a moving picture show. hcther or not, in so far as the statute delegates th, right to prohi- bit, it is unconsituttutional, is a question which we do not dete-rmine. It is a well established rule that a statute may be unconst:tutional in one respect and valid and enforcible in another. 36 Cyc. 976, and numborous cases cit.d, including McCready v. Sexton & Son, 29 Iowa 356; Santo v. State, 2 Iowa 165; City of Keoku4 v. Keokuk Northern Line Packet Co., 45 Iova 196; Davenport Gas & Elec. Co. v. City of Davenport 124 Iowa 22; Stae v. Santee, 111 Iowa 1; Hubbell v. Higgins, 148 Iowa 36..,,,,,0, U 22 Chapter III The Separation of Sovereign Powers Section 1. In General Exkerson v. City of Des LMoines 137 Iowa 452, 460-463 (1908) Mr. Justice Bishop (holding valid a statute which invests a mayor and four councilmen, in certain cities, with legislative, oxecutive and judicial powers): "Taking up the matters of contention in the order which seems to us best adapted to a dis- position of the case, we have as the first question, is chapter 48 violative of section 4, article 4, of the Federal Constitution? The por- tion of the section invoked reads thus: 'The Uni- ted States shall guarantee to every State in this Union a republican form of government.' This guaranty--so runs the contention--is not alone to the State, as such, but extends to the various subdivisions thereof intended to have part in the affair of government. And the argu- ment follows that a form of municipal government which ignores the essential features of execu- tive, legislative, andi judicial departments, each of which siall be separate and distinct from the others, and commits the functios of government to a sinigle board or body, is nonropublican, and hence repugnant to the guaranty. In our view the hypotiesis is wh1olly wrong, and hence the argument is without forco. The purpose of the Federal Constitution was to provide a form of gov- ernment republican in character, for the States as a united whole. This is manifest from the history of the times, the contemporaneous writings and public addresses, the constitutional debates, and the provisions of the instruminent itself as adopted. And. whatever may be the form of words employed by the lexicographers--and they are more or lcss varied--to define what is meant by the expression *a republican form of governeent', it is clear that it was understood by the fathers to mean a government by the people, through repre- sentatives appointed by -ihem to the various de- partments--executive, legislative, and judicial, as provided--either by direct vote or through some intervening officer or body by them selected and appointed by direct vote for the purpose. Now, at the time the constitution was adopted, as it is well known, there were in existence thirteen States, each 'thereof supreme as related to its own domestic affairs, and in each of which the government was divided into three depart- ments--executive, legislative, and judicial-- and carried.on through representatives selected from time to time by vote of the people. It is to be noted, however, that the form of local government provided for municipalities and other State subdivisions varied in the different States. In some, pure democracy obtained through the medium of the "town meeting"; in others, boards of selectmen were chosen, etc. That the form of government in vogue in these States was re- publican was not made the subject of question when the Federal Constitution came to be con- sidered. No one of such States was called upon to amend its plan of government--State or muni- cippl--to bring it into harmony with the plan proposed for the federal government. Now, having agreed upon a form or plan of general government it became of interest, as we conceive, that there should be maintained in the several States, then and hereafter composing the Union, a form of government constructed along the lines then presently existing, and generally to be in harmony with the federal plan agreed upon. And, to secure this there was included in the constitutional writing the guaranty pro- vision now under consideration. In this view it becomes apparent that the guaranty was intended to be to the States as such; that it was not intended to have any relation to the systems of local government provided by the several States for the regulation of their municipalities or other subdivisions. Says Judge Cobley in his work on Constitutional Limitations, 28: "The purpose of this guaranty was to protect a Union founded upon republican principles against aristocratic and monarchical invasions,"' that is, to prevent the people of a State from abolishing a republican form of government. And this is the thought of text and essay writers generally. Clearly enough, there is nothing in the language of the guaranty to indicate a purpose on the part of the general government to interfere with those matters of internal or domestic concern within a State which are of interest only to the people thereof--at large, or as divided into communities. And as the language does not give warrant, the power does not exist. 24 The powers of the general government are those delegated to it--either in express words, or following by necessary implication from a power expressly delegated And the voice of authority is one against any deprivation of or interference with the power of each State to regulate its own internal affairs in which it alone has interest. As said in Claiborn Co. v. Brooks, 111 U.S. 412 (4 Sup. Ct. 494, 28 L. Ed. 470): "It is undoubtedly a question of local policy with each State what shall be the extent and character of the power which its various political and municipal organizations shall possess, and the settled decision of its highest courts on this subject will be regarded as authoritative by the courts of the United States, for it is a 'question that relates to tLe inLternal constitution of the body politic of the State." And in direct line is the holding of the Califor- nia court in the recent case of In re Pfahler, (Cal. Sup.), (88 Pac. 270, 11 L.R.A. (.S.) 1~9o2: vIt is apparent.. ...the constitutional guaranty was intended to apply only to the form of govern- ment for the State at large, and not at all to the local government prescribed by the State for its municipalities and other subdivisions.....It is clearly a question of local policy with each State what shall be its various political subdi- visions for purposes of internal government, and what shall be the extent and chiaracter of the powers of those subdivisions and the manner of their exercise' . Section 2. The Legislative Department a. The General Scope of Powers McGuire v. The Chicago, B. & Q. RR. Co. 131 Iowa 340, 348-349 (1906) Mr. Justice We aver (Upholding a statute abolishing the fellow-servant rule on railroads, and deny- ing effect to any contract restricting liability or the acceptance of any insurance benefits as a defence to personal injury actions brought against railroads by btheir employees): "Summing up their arrgument against the validity of the statute, counsel narrow the question to the proposition that it violates the fourteenth amendment to the Constitution of the United States, as well as the somewhat similar provisions found in our state Constitution. 25 They way: "There are but two provisions of the Constitution of the United States relied upon by appellee in this case. These are found in the fourteenth amendment. The substance of these provisions is that no State shall pass any law that will deprive any person of the right of life, liberty, and property, or deprive any per- son of the equal protection of the law. There arc two provisions in our State Constitution, subst ntially similar: Section 1, article 1, and section 6, article 1. We assume tnat the court will regard itself bound to determine whether the Temple amendment is repugnant to these two provisions of the State Constitutiono." The questions thus raised are of great importance and have been thoroughly and exhaustively presen- ted in the briefs of counsel. It is well, at the threshold of the discussion, to recall the familiar rule by which we are bound in passing upon any proposition affecting the constitu- tionality of a legislative enactment. While it is an imperative duty, from which no court will shrink, to declare void any statute the unconsti- tutionality of which is made apparent, due regard to the boundary between the legislative and judi- cial departments of our government requires that this prerogative be exercised with the greatest caution, and only after every reasonable presump- tion has been indulged in favor of the validity of the act. M erchants' Union v. Brown, 64 Iowa, 275; Stewart v. Supervisors, 0 Iowa, 9; Duncombe v. PIriClE, 12 Iowa, 1; Reed v. Wright, 2 Go Greene, 15; Sate v. Judge, 2 iowa, 280; li ing v. t. Pleasant, 11 Iowa, 482; Flint & F. Plank Road Co. v. Woodhull, 25 MIich. 09 (12 Am. Rep. 233); Evans v. Job, 8 Tev, 322. It is not the province of the court to pass upon the policy, wisdom, or justice of the statute, or upon the expediency of its enactment. Railroad Co. v. SupervisorsL 67 Iowa, 199; Merchants' Union v. Brown, supra. So thoroughly are the courts committed to this theory of the law that in Stewart v. Supervisors, supra, it is said that "A legislative act may be declared unconstitutional only when it violates thlat instru- ment clearly, palpably, plainly, and in such manner as to leave no reasonable doubt." In this same case we approvingly quoted the language of Mr. Justice Baldwin of the federal court as follows: "Te cannot declare a legislative act void because it conflicts witn our opinions of policy, expedi- ency, or justice. We are not the guardians of the rights of the people of the State, unless they are secured by some constitutional provision which 26 comes within our judicial cognizance. The re- medy for unwise or oppressive legislation within constitutional bounds is by appeal to the justice and patriotism of the representatives of the people. If this fail, tihe people in their sovereign capacity can correct the evil; but the courts cannot assume their right-. . . " State of Iowa v. Mayor, Etc., of Des Moines 103 Iowa 7.6, 81-82 (1897) TMr. Chief Justice Kinney (holding invalid an act which assumed to authorize library trustees. appointed by the mayor with the consent of te city council to fix absolutely and beyond the control of the council the amount of taxes -o be raised for the purposes of the library): "The questions involved in this appeal are of great interest and importance. Irrespective of our duty to uTphold the act of the legislature as constitutional, if it be possible to do so without doing violence to well-known legal prin- ciples and accepted" canons of construction, our interest in the welfare of the people, whic is so largely promoted by the establishiient and maintenance of public libraries, would prompt us to give the questions presented most careful consideration. If it be conceded tiat a tax for the maintenance of a public library and for the erection of a librar building is a tax for a public purpose, and Ceince one which, in furtherance of the general public policy of the state, may be compelled to be levied, may the legislature authorize its levy by tnee board of library trustees? Touching the power of the legislature to delegate the taxing power, Judge Cooley says: "It is a general rule of constitutional law that a sover- eign power conferred by the people upon any one branch or department of the government is not to be delegated by that branch or department to any other. This is a principle which pervades our whole political system, and, when properly understood, permits of no exception, and it is applicable with peculiar force to the case of taxation. The power to tax is a legislative powr. The people have created a legislative department for the exercise of the legislative power and within that power lies the autiuority to prescribe the rules of taxation, and to regu- late the manner in which those rules shall be given. effect. " There is, nevertheless, one clearly defined exception to tne rule tat the 27 legislature shall not delegate any portion of its authority. The exception, however, is strictly in harmony with the general features of our political system, and it rests upon an implica- tion of popular assent, which is conclusive. These exceptions relate to the case of municipal cor- porations. Immemorial custom, which tacitly or expressly has been incorporated in the several state constitutions, has made these organizations a necessary part of the general machinery of state government, and they are allowed large authority in matters of local government, and to a consi- derable extent are permitted to make the local laws. This indulgence has been carried into matters of taxation; the state in very many cases doing little beyond prescribing rules of limita- tion within wvhich, for local .iurposes, the local authorities may levy taxes. " The legislature, however, in thus making delegation of the power to tax, must make it to the corporation itself, and provide for its exercise by the proper legis- lative authority of the corporation. *Khat is true of the state is equally true of the munici- pality,--that the power they possess to tax must be exercised by the corporation itself, and cannot be delegated to its officers or other agen- cies." Cobley, Taxation (2d ed.) pp. 61, 63, 65. The doctrine laid down by the learned author is that the delegation of the power to tax by the legislature must be made to the munici- pality itself, and that it cannot be delegated to other agencies, . . " Hunter v. Colfax Consolidated Coal Co. 175 Iowa 245, 266-268 (1916) Mr. Justice Salinger (upholding the constitu- tionality of the Iowa T:orlmens' Compensation Act): "There is an additional and thoroughly well established and fortified line of reasoning upon which we must reach the same conclusion; and that is, that the courts should never give construc- tion to a statute which will render it uncon- stitutional, or which may even create serious doubts as to constitutionality, if any other con- struction be possible, within the bounds of reason. 28 It is possible to claim that the right to make the master absolutely liable is recognized in Sexton v. Newark Dist. Tel. Co. (N.J.), 86 Atl. 4, and City of Chicago Sturges, 32 Sup. Ct. Rep. 92. For the purposes of -the argu- menit, we may concede that these cases so hold, ,but the overwhvelmin; preponderance, in numbers at least, is to the contrary. In Parrot v. VWells-Fargo Co., l5 Wall. (U.S.) 524, the plaintiff, who was the common landlord of the defendants and other tenants, sought to hold the defendants liable for damages occasioned to the premises occupied by the othei tenants by an explosion of nitro-glycerine, which had been delivered for shipment to the defendants as com- mon carriers, It appeared that the defendants were innocent ignorant of the contents of the package containing the dangerous explosives, and that they were guilty of no negligence in re- ceiving or handling them. Upon these facts, the Federal Supreme Court held that it was a case of unavoidable accident, for which no one was legally responsible. In Ohio & M R. Co. v. Lackey, 78 Ill. 55, the question was whethler the railroad company was liable under a statute which provided T"that every railroad company running cars within this state shall be liable for all the expense of the coroner and his inquest, and. the burial of all persons who may die on the cars, or who may be killed. by collision or other accident occur- ring to sucLh cars, or otherwise." The act was held invalid because it attached this liability in cases where no default or negligenc-e of any kind on part of the railroad company exi.ted. To the same effect are numerous cases arising under statutes imposing on railroad cor- porations absolute liability for killing or injuring anirma.ls upon their right of ways by running over them, which all hold such to effect a deprivation of proporty without due process of law. Jensen v. Union Pac. R. Co. (Utah), 21 Pae. 994; Zeiglor v. South & N. AT R. Co., 58 Ala. 594; Birmi Iham Kin. R. Co. v. Parsons (Ala.), 13 So. 60; BElenberg v. iontana UR. Co. (Mont.) 20 Pa, . 014;S~ek v. Union Pac. R. C.0 (WyJ ,), 40 Pac. 840; Cottrel v. Union Pac. R. Co. (Idaho), 21 iac. 416. And while statutes compelling fencing upon pain of additional liability are valid, it is said by Black, in his work on Constitutional Law (2d Ed.), page 551, that even such statutes cannot 29 go beyond imposing a penalty "in cases where the fault lies at the door of the company. If the law attempts to make such companies liable for accidents which were not caused by their negligence or disobedionce of the law, but by the negligence of others, or by uncontrollable causes, or does not give the company opportu- nity to show these facts in its own defense, it is void." See Steffen v. Chicago & N. W. R6 Co. (Vis) 50 N. W 348; Lewis v. Flint & P. . R. Co. (ich.), 19 N.J744;Bennett v. Ford, 47Ind. 264; Brown v. Collins, B5 . H. 4427 Gibbs v. TallyTlif, 65 Pac. 970; Denver & R. Go R. Co. v. Outcalt (Colo.), 31 Pac. iY7; South & N. A. R. Co. v. I"orri s, 65 Ala. 19 --T~ cago, St. L. & N. V. R. Co. v. M ss, 60 Miss. 641; Birmingham lin. R. Co. v. Parsons (Ala.), 13 So. 602. We have no occasion to decide, and there- fore express no opinion on, whether making the master liable absolutely is within the power of the legislature. All we do is to point out that, in the light of the cases to which we have referred, it was, at the time when the IoVa legislature acted, at least a matter for reasonable difference of opinion whether holding the employer to respond when wholly free from blame is a valid exercise of legislative power. Upon this premise, we apply elementary rules of statute construction, to wit, that all doubts shall be resolved in favor of constitutionality (Dutton Phosphate Co. v. Priest(Fla.), 65 So. 2T7Cineinnati,VTee R o v. CoCommissioners, 1 0. at 8 , a athatt is t is the-uLty f-theT- court to give a statute such construction, if possible, as will not render it unconstitutional. Santo v. State, 2 Iowa 165, 208; State x rel. eir v. County Judge, 2 Iowa 280; Duncombe v. T l-e--i72T-owa 1; Iowa Homestead-o. v. e5 s7 C ount y, 21 Io a 2I- Note: See Carl H. Erbe, The Leislative Depart- mont as Provided by the Constitution of iowa, 23 Iowa Journal of History and Politics, 217. Section 2. The Legislative Department ,)E ct ion 2. Theotie d ) b. General and Special. Laxws--Uniformity LicGuire v. The Chicago, B. & Q. RR. Co. 131 Iowa 340, 350-.52 (1906) ir. Justice Yeaver (upholding a sta-itute abolishing tnLe fellow-servant rule on rail- roads, and denying effect to any contract restricting liability or the acceptance of any insurance benefits as a defence to per- sonal injury actions brought against rail- roads by tiieir employees): 'Is the statute objectionable as class legislation, or as denying to the corporation tae equal protection of the laws? The Iourteenth amend.nment to the Constitution of the United States provides, among othier tnings, that no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. \ihile a corporation is not a citizen within the meaning of this amendmen-t, it is a "person, and as such may not rightfully be denied the protection of the laws of the State upon equal terms witia all other persons under like cir- cumstances and conditions Smyth v. Ames 169 U. S. 466 (18 Sup. Ct. 418, 48 L. Ed. 4i-); Pembina v. Pennsylvania, 125 U.S. 188 (8 Sup. C-t. 037,31 L. Ed. 650); N. Y. & No E. R. R. Co. v. Bristol, 151 U. S. 556 14 Sup. Ct. T43738T,. Ed. 269. ) But the reasonable classification of persons for the purposes of legislation accord- ing to occupation, business or other circum- stances, by which one class or portion of the people is diffcrentiated from other portions or classes, has often been held. not to be a violation of this constitutional guaranty. The mere fact that legislation is special, and made to apply to certain persons and not to others, does not affect its validity, if it be so made that all persons subject to its terms are treated alike under like circumstances and con- ditions. HIayes vo iissouri, 120 U. S. 68 (A Sup. Ct. 350, 3 L. iEd. 578); Commonwealth v. Railroad Co., 187 Mfass. 436 (73 N. E. T3;tat~e v. Nelson 52 Ohio St. 88 (39 N. E. 22, 26 L. i. A. 317); People v. Smith, 108 Llich. 527 (66 N. h;. 382, 32 L. R. A. 853 62 Am. St. Rep. 715); People v, W.Talbri dge, 6 Cow. (N. Y.) 512; Dugger v. 31 Insurance Co., 95 Tenn. 245 (32 S. 7;. 5, 28 L. R. A. TV); Ualston v. evin, 128 U.S. 578 (9 Sup. Ct. 192,- 2 L. Ed. 544); Duncan v. Eissouri, 152 U. So 377 (14 Sup. C-t. 570, 38 L. Ed. 485); Broadfoot v. Fayetteville, 121 I. C. 422 (28--S. E. 15, 39 L. R. A. 245, 61 im. St. Rep. 668); State v. Tower, 185 Mo. Sup., 79 (84 S. -. 10, 68 L. R. A. 402); Feopleo v. Bellett, 99 Mich. 151 (57 11.. 1094, 22 JL. R. A 696, 41 Am. St. Rcp. 589.) Such, also, has boon the uniform holding of this court with rofercnce to the correspon- ding provision in our state Constitution. A loading case to this Qffect is IMcAunich v. Railroad, 20 Iowa, 338. As we there said: 'Such laws are general and uniform, not because they operate upon every person in the State, but because every person who is brought within the rclations. and circumstances providced for is affected by the law. They are gencral and uniform in their operation upon all persons in the like situation and the fact of their being gencral and uniform is not affected by the number of pcrsons within the scope of their operation." Treating the same question, tre Supreme Court of the United btates by Field, J., in Railroad v. L1ackey, 127 U. S. 205 (8 Sup. Ct. 1161, 32 L. Ed. 107), says: "'The greater part of all legislation is special, either in t1ie objects soight to be attained by it or in thie extent of its application....Such legislation does not infringe upon the clause of the laws because it is special in character. And when legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them trhe e u.al protection of thie laws if all persons brougut under its influence are treated alike under the same condition." See, also, Leople v. Havnor, 149 No. Y. 205 (43 N.E. 541, 31.L- R. 689a 52 Am. St. Rep. 707); - at son v. Nevin, 128 U.S. 578 (9 Sup. Ct. 192,72 L. Ed. ET Giozza v. Tiernan, 148 U. S. 657 (13 Sup, t. 1,7 L,.. ,. 599); Railroad Co. v. Backus, 154 U. S. 421 (14 Sup.--t 1114,C-t8- L. Ed. 1031); Railroad Co. v. Crider, 91 Tenn. 501 (19 S. W. 68); Bte v. Paltrovich, 30 Mont. 18 (75 Pac. 521, 104 Am. St. itp. -8) That legislation imposing upon railway companies special restrictions, obligations, and liabilities not generally applicable to other persons or cor:orations is not a denial of the equal protection of the laws has been so often decided as to be no longer a debatable question. Thus the courts have upheld statutes depriving railway companies of the benefit of the fellow servant doctrine, Herrick v.Railroad, 31 Minn. 11 (16 N.W. 413, 47 Am. Rep. 771); Railroad v. Mackey, 127 U.S. 205 (8 Sup. Ct. 1161, 32 L Ed. iT T;Railroad v. Herrick, 127 U.S. 210 (8 Sup. Ct. 1176732 L Ed. 109); requiring a railway company to pay attorney's fees to the landowner in condemnation proceedings, Gano v. Railroad, 114 Iowa, 719, subjecting railway corporations to double damages under certain circumstances, Railroad Co. v. Humes, 115 U.S. 512 (6 Sup. Ct. 101, 29 L E.d 63;T Railroad v. 3eckwith, 129 U.S. 26 (9 Sup. Cto 52T7~2 L. bd.~6bETT deny- ing railway corporations the riuht of appeal froi assessment for taxation, althouhi such riglt is given to owners of other taxable property, Railroad v. Backus 154 U.S. 421 (14 Sup. Ct. 1114, 82 L. Ed. l50) o; miaking such corporations liable without regard to negligence for fires set by their engines, Railroad v. Matthews 174 U.S. 96 (19 Sup.Ct , 4CL. Edo -); and requiring them to pay without discount to a discharged employe wages earnecd at the time of discharge, Railroad v. Paul, 173 U.S. 404 (19 Sup. Ct. 419, 43 L. Ed. 746.-) In each of these cases, and in many others which might be cited, the statui�e under colnsideration was made applicable to railway companies only, and in each case it was viorously assailed as a denial of the equal protection of the laws; but in each instance, after thorouh argumen.t proceeding along the lines followed by counsel for the appellee herein, the court of last resort has uniformly held the legislation to be a valid exrercise of the police power of the states. In view of t ese decisions we think it beyond ques- tion that the statute here under consideration cannot be said to be void as a denial of the equal protection guarantied by the fourteenth amendment. As to the general nature of this amendment and the limits of its application, see Davidson v. New Orleans, 96 U.S. 97 (24 L. Ld. 61;TTRailroad Co. v. Humes, 11b U.S. 512 (6 bup. Ct , 29TL. Ed. 463SYTBarber v. Connolly, 116 U.S. 2T (5 Sup. Ct. 357, 2 L. " d.. 923 ; Railroad Co. v. ,ay, 194 U.S. 267 (24 Sup. Ct. 638, 48 L. i7. 971)- Insurane Co, v. Dobiey 189 U.S. 301 (23 Sup. Ct. 565, 47 L. Ed. 8211; Froelich v. Railroad Co., 24 Ohio Cir. Ct. R. 359; Railroad Co. 'v. iahaffey (Tex. Civ. App.), 81 S.W . 1047. . *. Note: Accord Hunter v. Colfax Consolidated Coal Co., 175 Iowa 245, 287-289 (1916). Section 2. The Legislative Department (continued) c. The Entitling of Legislative Acts-- Singleness of Subject Beresheim v. Arnd 117 Iowa 83, 89-91 (1902) Mr. Justice 'aterman (holding valid an act author- izing boards of supervisors to provide for the discovery of property withheld from taxation, to list the same and to collect taxes thereon): "Finally, it is strongly insisted that chap- ter 50, Acts Twenty-eighth General Assembly, is in conflict with section 29, art. 3, of tne con- stitution, which reads as follows: "Every act shall embrace but one subject and matters properly connected therewith, wnich subject shall be em- braced in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.' ChapteB 50 gives to boards of supervisors the authority to contract with private persons for the discovery of property not listed for taxation, fixes the maximuii of compensation that may be allowed, requires a bond from suea agents, provides for notice by the treasurer to the property owner before listini- the property, makes disposition of the taxes recovered, and validates conitracts there- tofore made for the discovery of omitted property. The title of the act is in t~iese words: "An act to autilorize boards of supervisors to provide for the d-icover :of property withheld from taxation, and to list the same and collect taxes thereon, and to legalize contracts heretoiore made for that purpose by boards of supervisors upon certain con- ditions.' The act is additional to chapter 2, title 7, of the Code, relating to the collection of taxes, and. all its provisions have direct reference to 34 that subject. The intention of the constitutional provision prohibiting more than one subject being embraced in a bill is to prevent the union in the same act of incongruous matter� But it is the unity of object which is to be looked for in the ultimate purpose to be attained, and not in the details for accomplishing such purpose. State v. County Judge of Davis Coiuity, 2 Iowa, 280. An act providing for "revising and cons.olidating the laws and incorporating the city of Dubuque and establish- ing a city court therein"' was held not to embrace more than one subject. Davis vo oolnough, 9 Iowa, 104. See, also, Santo v- State, 2 Iowa, 165 (63 Am. Dec. 487); State v. Schroeder, 51 Iowa, 197; ,artin v. Blattner, 68 Iowa, 286; Christie v. Investment Co., 82 Iowa, 360; Richman v. Super- visors, 77 Iowa, 513. But it is said a part of the subject-matter viz, the assessment, is not embraced in the title, which speaks of i"listing" the pioperty, and that listing and assessing are two very different matters. It is true, the words rlista and "assess" are used in the chapter relating to taxation in a soimcewhat different sense, but always as a part of the same process of getting tie property upon the tax roll. In section 1774, to which this act is additional, the words listing and assess- ment are used in the sejnse mentioned. The objection is purely technical, for the title of the act says, ito list and collect taxes thereon and surely this phrase includes an assessment. Titles of legisla- tive acts are to be liberally construed. Snooting Club v. L.amoreaux, ;is. _(89 N.. Rep. 880]. In that case the court says: "It has been repeatedly held that the title of an act should be liberally construed; that it should not be condemned as insufficient to constitutionally suggest those things found i:n the body of thie act, unless, giving thereto the largest scope which reason will permit, something is found therein which is neither within its literal meaning, or its ppirit, nor germane thereto. Co-urts cannot sit in judgment upon the work of the legislature, and decide one of its acts un~hnstithtional, merely because the title thereto is not as comprehensive as it might have been made. * * * Any number of provisions, all relating to a single object, including all the necessary or reasonable details thereof, may be covered by a title in such general terms as to fairly indicate such subject; the unity of The subject being taken as including within its scope all The details provided to effect the single leislative purpose.oT See also, to the same effect, In re Mayer, 50 N. Y. 504; Connor v. Railroad Co., 23 S. C 427; Town o If a~lomet v. Quackenbusch, 117 U.S. 508 (6 Sup. Cto Rep. 858, 29 L. Ed. 982). Our conclusion is that the trial court erred in not confirming the assessments for the years 1896 and 1897, and awarding judgment therefor. MLodified in that way, the judgment entered will b_ affirmed,, Sisson v. Supervisors of Buena Vista County, et al. 128 Iowa 442, 451-452 T19-5) Mr. Justice Bishop (holding valid. an act providing for the drainage of surface water from agricultural lands): "The Constitution of this state provides that "every act shall embrace but one subject, and matters properly connected therewith: which subject shall be expressed in the title.7' Constitution, section 29, article 3. recisely stated, it is the contention of appellant that in the title of the instant act there is not "a suggestion of an intention to provide drainage districts to drain surface water fromi agricultural laiids simply to improve such lands.o T.Ue point is hypercritical. By its title, the act is one to promote public health, etc., by drain.in g the lands of the state, the establishment of drainage districts, etc. "Lands of the sta-bte" means, of course, lands within the state, and. includes agricultural lands. And. by the terms of the act th;ese latter are authorized to be drained because conducive to the public health, etc., and not "simply to improve such laids."1 The intention of the constitutional -!rovision was to prohibit the insertion in an act of incongruous matter, having no connection or -elation with the general subject as expressed in tie title. Accord- ino.gly the title is sufficient, althou,,h confiined to general terms, if it answers as a key to the subject-matter of the act. StateVo. County ude, 2 Iowa, 280; State v. Forkner, 94 Iowa, 1; Cook v. Marshall Co., 119 iowa, 84. 'e conclude that there is no merit in the contention. . . Section 3. The Executive Department Bryan v. Cattell 15 Iowa 538, 541-445 (1864) Mr. Chief' Justice Wright (holding valid a statute and an executive action in pursuance thereof appointing a District Attorney to succeed one who was absent from the state on military service): T- right, Ch. J.--By the Attorney-General it is claimed: First, that the District Court of Polk county had no jurisdiction to award this writ for the purpose, and under the circumstances disclosed in the record. Second. If the court had jurisdiction, then tnat ..the Auditor decided correctly in refusing to draw the warrants on the plaintiff's demand, and the writ should, therefore, have been denied. In obedience to wnat we understand to be the na- ture and character of this writ, the power of the judiciary, and the adjudications upon the subject, we are clearly of the opinion tniat the juris- dictional objection is not well taken. This writ issues upon the order of a court of competent jurisdiction, and when from the )istrict Court, it commands an inferior tribunal, corporation, board or person, to do or not to do an act, the perfor- mance or omission of which the law specially enjoins as a duty, resulting from an office, trust or station. The Supreme Qourt may also issue it when necessary to the District Court, or in any other case where it is necessary to enable it to exercise its legitimate power. The law also declares that the writ may be granted on the petition of any private party aggrieved, without the conerrence of the prosecutor for the State. Rev., sections 3761-3764. The objection made is, that the District Court of the county where the Auditor of State resides, has no power to order this writ; that he is not an inferior tribunal, board or person, within the meaning of the statute. It is obvious that the Supreme Court could not order the writ, for it would not go to the District Court, nor would it be necessary to enable it to exercise any legitimate power. If the jurisdiction exists anywhere, therefore, it must be in the tribunal selected in this instance. The powers of the State :overnment are divided into three separate departments (the executive, legeslative and judicial), and no person charged with tile exercise of powers properly belonging to one department shall exercise functions apper- taining to either of the others, except as in the Constitution is expressly directed or permitted. Const., section 1, article 3. The Auditor of State belongs to the executive departmeint. Section 22, art. 4. And from these provisions the argument is that in ordering this wrVit, the District Court assumed. that the executive department was inferior to the judicial, or thnat tne Auiti or, who is the general accountant of the State, was an inferior officer or person. The argument, however, mistakes the reanini of the constitutional provisions nuoted, and as a. conseqene reaches a wrong conclusion. To one now doubts the p0ower of tne judicial 6epartment to declare void an act of tLe Legisla- ture, if in con:i::ict with thi e Constitution, though the act may have been i passed_ wi-ti all the required formalities, ad. received the executive sanction. And iyet we have inever heard it Eu ested that in this, tie judicial was exercisin fiunctions apper- taining to the legislative dei)a-.tmiJent. NTor has it to our knowledge ever been surpposed that in exerci- sing such power, the courts assumed that the legislative and executive were inferior to the judicial -ower. The Constitution, by t.ie inhibi- tienr in uestiopa, designed (we state the proposi- tion by way of illustration), to prevent the executive of nhie SState firom bein.' at tlie same time a judge of tine Supreme Court; a member oi this Court fro-a be ing, during his term of service, Sec- retary of State, or treasurer; a m ember of the Senate or H-ouse from ben: Governor; tle judicial department fr.om discharging cuties or exercisin- the functions devolvin- upon or ca..,pertainin- to tale exe cutive. Thus, the Governor ca.Lot adjudicate cases pending in i;his Court, nor ca; tils Court grant pardons and reprieves. So neither can this Court make The law, nor can t.e Le.islature assess fiL-es, or r i ender jucdLmen:ts. io some tribunal, however, must be entrusted the power of passing upon the legality of the acts o those filling these sever..l departments, andd especially t��e executive and legislativeo And to assume that if this power is exercised, there is an interference with the funcbions oif suc other deartments,, awards conclu- siveness to heir action. For sucun ac-ion either is or is not coilcusive. .o one pretends hat- it is always free from examination or correction. If claimed to be illegal, what tribunal, under our forrm of government, determines it? Most clearly the judicial. And yet such examination cannot be had, according to the argument now under consideration, without improperly inter- fering with the functions of another co-ordinate department, without infringing upon the Constitu- tion. Marshall, Ch. J., in Page v. 1Hardin 8 B. Monr., 648 (in an opinion, we may remark, very ably, and quite applicable to many of the ques- tions made in this case), referring to the very point now under consideration, uses this lan- guage: "'But his (the Auditor's determination against the claim cannot be conclusive, because the right, if it exists, is a legal right; founded in the law, and therefore to be ascertained and maintained by the law; whence it follows that there must be some legal remecdy above, and inde- pendent of Ate Auditor's will or judgment for-the enforcement of the right, anid the redress of tie wrong by its being withheld. The remedy is, in our system, to be found in tile resort, by the ordinary modes, to the judicial power as adminis- tered in courts of justice. This, as between individuals, is the iinal test of legal right and wrong, and not the less so because in any case the right claimed or wrong alleged may be of such a character as to bring in cuestion the efficacy off official acts done by the jurisdiction of other departments of the government. Not that the judi- cial power, or the judicial department, is super- ior to others, or that the depositaries oi tiat power are necessarily more enlightened -than all others, but because it has been found essenial bo the preservationi of individual rign-ts, andU to the reular and equal operation of free governiment,i that trie three great departments should be en- trusted to differelt bodies of magistrates, and that one of them should be a judicial depariiment, having for it peculiar province or duty the administration end exposition of tne laws in their application to enforcement of rights and the repression and redress oi wrongs. The execu- tive depa rbmeit, an all oi its officers are as much bound by tne cons titution and laws as tne legislative, and have no more power to violate the rignts of individuals secured by law. The power, obviously judicial, of ascertainini and expressing n e lej.l ri .hts of ind.vaaduals, is in effect the power of protecting. those rights from violation by the act or authority, either of individuals or of the legislative depart- ments; and it necessarily involves the function of deciding in every case properly before it what are the legal rights of the parties, and how far in point of law, that is under the con- stitution and laws, those righ ts ave been effected by any and every act, relied on for their support or destruction. * 4 . The judiciary pretends -to no direct control over the action of the Legislature, or of the supreme executive. But it may decide upon tile validity of the acts of either, affecting private rights. And by the writ of mandamus it may coerce a ministerial officer, though of the executive department, to the performance of a legal duty for the effectuation of a legal rightI" And we may remark that those thoughts have peculiar pertinency under our law. For it will be remembered that the writ may issue on the peti- tion of the party agg.',rieved. The proceeding is not iiere, as in England, and in most of the States, in che name of t4oe Government. I n the King's Bench, where the King is deemed to be potentially present (and where, only, in England, it can be en-orced), the proceeding 'stands on the foot of contempt, and is intended to reformi official delin uency."' 13 Pet., 607. Here the proceeding may be in the name of the party agrieved, ,*eve and while tie substan-ce of the law governing the writ and the Tpractice under it, except where epressly modified by statute, is to be found in th'ie cormon law, indiviauals may invoke the order to enforce a legal duty, or to secure their leral r1ig.uLts, . " Note: See Carl H. Erbe, The Executive Department of Government as Provided by thue Constitution of Iowa, 23 Iowa Journal of History and Politics, 363. * *** ** 40 PART II PROVISIONS FOR THE PROTECTION OF FUNDA2MENTAL RIGHTS Chapter IV Citizenship, Suffrage and Right to Hold Office State of Iowa v. Walker 192 Iowa 823, 828-829 (1921) Mr. Justice DeGraff (holding that women are competent to act as jurors under the Constitution and statutes of Iowa, in the course of an opinion resulting in the reversal and remanding of a case in which there had been a conviction of the crime of breaking and enter- ing): ",The fourth ground of challenge presents a new question to this court: Are women competent and eligible to act as ,jurors under the Constitution and statutes of Iowa? This question speaks its own im- portance, but it can be fully answered by the consider- ation and the application of the Nineteenth Amendment to the Constitution of the United States in its relation to the Constitution and statutes of Iowa. This amendment as adopted August 26, 1920 and as declared by the certification of the secretary of state reads as follows: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex, Congress shall have power to enforce this article by appro- priate legislation." Article 2, Section 1 of the Constitution of Iowa reads: "Every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state six months next preceding the election, and of the county in which he claims his vote, sixty days, shall be entitled to vote at all elections which are now or hereafter may be author- ized by law." By the inherent force of the language of the Nineteenth Amendment, as a part of the supreme law of the land, women are included and made a part of the electorate of this state, and no further legis- lation pursuant to this amendment is required by Congress or by the general assembly of'the state of Iowa, The amendment is self-executing, The Supreme 41 Court of the United States in construing the so-. called Grandfather clause of the amendment to the Constitution of Oklahoma in its relation to the Fifteenth Amendment to the United States Constitution said: "It is equally beyond the possibility of question that the amendment in express terms restricts the power of the United States or the states to abridge or deny the right of a citizen of the United States to vote on account of race, color, or previous condition of servitude, The restriction is coincident with the power and prevents its exertion in disregard of the command of the amendment. But while this is true, it is true also that the amendment does not change modify, or deprive the states of -their full power as to suffrage, except, of course, as to the sub- ject with which the amendment deals, and to the extent that obedience to its cormmand is necessary. Thus, the authority over suffrage which the states possess and the limitation which the amendment imposes are co-ordinate, and one may not destroy the other without bringing about the destruction of both. While in the true sense, therefore, the amendment gives no right of suffrage, it was long ago recognized that in operation its prohibition might measurably have that effect: that is to say that, as the command of the amendment was self- executing, and reached without legislative action the conditions of discrimination against which it was aimed, the result might arise that, as a conse- quence of the striking down of a discriminating clause, a right of suffrage would be enjoyed by reason of the generic character of the provision which would iemain after the discrimination iwas stricken out A familiar illustration of this doctrine resulted from the effect of the adoption of the amendment on state constitutions in which, at the time of the adoption of the amendment, the right of suffrage was conferred on all white male citizens; since, by the inherent power of the amendment, the word 'white' disappeared, and there- fore all male citizens, without discrimination on account of race, color, or previous condition of servitude, came under the genoric grant of suffrage made by the state." Guinn v. United States, 238 U. S, 347 (59 L Ed. 1340). See, also Strauder v. West Virginia, 100 U. S. 303 (25 L. Ed, 664); Neal v. Delaware, 103 U. S. 370 (26 L. Ed. 567); Bush v. Kentucky, 107 U. S. 110 (27 L. Ed. 354). 42 The effect, therefore, of the Nineteenth Amentment in its relation to our state Constitu- tion (Article 2, Section 1) is to enlarge the electorate and create practical universal suffrage." . . . State of lova v. Mohr 198 Iowa 89, 91-96 (1924) Mr. Justice Evans (discussing the qualifications of voters of a school district corporation and sustaining a judgment of ouster): "On the trial below, the court found that five of the ten rejected ballots were proporly rejected, and that the other five were improperly rejected, and therefore should -harvetzeyggged. Of the five ballots improperly rejected, our were "For" dissolution and one "against." No complaint is made of such finding. On this basis, the vote would have stood 126 "for"' and 123 "against". But the court also found in this connection that Ungrue, who had voted "for," and Scaarup, who had voted "against," were not electors, and their votes were deducted from the respective totals. On this basis, the vote stood 125 "for" and 122 "against," Those totals would, of them- selves, be decisive of this issue, were it not for the contention of defendants that it was not suffi- cient for the relators to show that a larger number of ballots were cast "for" the dissolution than were cast "against" it, but that such larger number so cast "for" must be a majority over all votes cast by legal electors, whether such votes cre intell- igible and countable or not; and that the fi re rejected ballots must be included in the count for the purpose of determining whether there had been a majority "for" dissolution. To this conten- tion, the relators interposed a tiwofold resistance: (1) That the point was not tenable in law; (2) that three of the votes counted "against" dissolu- tion wvere cast by nonelectors, Culver and Yopson and Mrs, McCullough, and that such votes must, therefore, be deducted from the count. An issue was made upon the legality of these three votes, The case was tried to a jury, By agreement of the parties, the question whether Culver, Yepson, and Mrs. McCullough, or either or any of them, were electors vwas submitted to the jury for special find- ings, The other issues of fact were by agreement submitted to the court. The jury returned special 43 findings adverse to the legality of the vote of each of the three -named persons. One of the prin- cipal questions nowv presented to us is whether the court should have held, as a matter of law, upon the record, that each of the three persons in question was'a legal voter. We give our first attention to it. I. Taking first the case of Yepson. Yepson had formerly lived at Yetter. In november, 1919, he went to Kana uha, and was there continuously un- til November, 1921, engaged in his brother's store On November 3, 1921, he came to Yetter, to engage temporarily in husking corn for his brother, He remained in that work until December 10th follow- ing, and then returned to Kanawha, where he had remained up to the time of the trial. It will be seen that the question of his residence turned 6n the question of his own real intent and purpose. If he intended to retain Yetter as his home and to return thereto, it was within his legal right to do so. If he intended to take up his legal resi- dence at Kanawha, that also wasvwithin his legal right. He was-an unmarried man. He paid his poll tax at Kanauha. On trips away from Kanawha, he had registered his residence as "Kanawha" on the hotel registers. He was a member of the baseball team 6f Kanawha and of the American Legion of that place, Confessedly, he was by his own intent a resident of Kana-iwha on and at all times after Jan- uary, 1922. He did testify that it was in January, 1922, that he formed the purpose of becoming a resident of Kanawha. But no change had occurred in his outwvard attitude at that time. The court sub- mitted the question to the jury vhether Yepson had, prior to November 16, 1921, become in purpose a resident of Kanavwha. If yea, he vas not a legal elector at Yetter, The finding of the jury vwas adverse to the claimi of residence at Yetter. We think the evidence -as such as to make a fair question for the jury, Though Yepson had a right to testify to his ovwn purpose, and though such purpose wvere con- trolling, and though no other witness could directly contradict his testimony in that regard, yet his testimony was subject to contradiction by the circum- stances and by his conduct. From these, the jury had a right to find that he had in purpose taken his residence at Kanawha prior to November 16th, notwithstanding his testimony to the contrary, 44 Turning to the case of Culver. He was a teacher in the consolidated school, He began his employment there in September, 1921. His contract of employment terminated; in March, 19224, Prior to September, 1921, he had been a resident of Hubbard, in Hardin County, Ioway for more than ten years. He owned a home there. His family, consisting of wife and son, were occupying that home at Hubbard while he vas engaged in teaching at Yetter. His testimony as to his purpose was that he intended to make his home at Yetter as long as his employment should continue, So far as his present contract was concerned, he had no intention to stay there longer than until 1March, 1922, unless he could secure a renewal of the contract. It appears also that, during the ten preceding years while he had continued his home at Hubbard, he had been continuously engaged in teaching in various towns successively. He had taught at Otteson for four years. During part of that tim e, he had taken the wife and son with him, taking along sufficient furniture to keep house. At the end of the school year, they returned to the home at Hubbard, and this they did every year, He taught for a year at Troy, while the wife and son remained in the home at Hubbard. He taught also at Kinross, while his family remained at the Hubbard home. He taught a year at Crystal Lake, and took his family with hii. The Hubbard home wa=..s locked up during their absence. At the close of the school year, they all returned thereto. While he was teaching at Yetter, his son was attend- ing the high school at Hubbard as a resident pupil, and paying no tuition. The father main- tained a post-office box in the town of Hubbard at all times, We think these circumastances were abundant to warrant a submission of the issue to the jury. The jury finding was adverse to the legality of his vote. Turning to the case of Mrs. McCullough, it appears that she was a mlarried woman, who had lived with her husband at Pomeroy, Iowa, until September preceding th::e election. At that time, she came to the home of her daughter at Yetter. Her husband mantaained his residence at Pomeroy. This was sufficient to establish her prima-facie residence at Pomreroy. To meet this prima-facie case, she testified for the defendants as follows: 45 'I formerly lived at Pomeroy. I was married to MIr. IMcCullough in 18968 We have one daughter. She is married, Her name is Mrs. Frank A. Gurget, She and her husband live at Yetter. During our married life I have always contributed to my own support and that of my daughter. I was a dressmaker in Pomeroy I have kept roomers and boarders. I bought some of the furniture for the house, Mlr. McCullough has used liquor. He has frequently been intox- icated. I moved over to Yetter the first week in September, 1921, and moved the furniture over there, I have been living over there ever since, "Q. WVho lives with you in Yetter? A. My daughter and her husband. Miyself and my daughter and her husband lived in the same home since we have been in Yetter, I moved to Yetter intend- ing to make my home That has been my intention ever since, and is now. I have never been back to Pomeroy since I have lived in Yetter, only to visit friends, LMy husband has no home there to visit. I have no intention of going back to Pomeroy to live, Before I left Pomeroy, Mr. MIcCullough was away a large portion of the time. He was away perhaps a third of .the time."' It further appears that her husband visited her at Yetter since her arrival there, and that he spent a week with her in the daughterrs home at one time. Though he had no house in Pomeroy, she did have one, The point urged in the lower court was that her testimony showed conclusively that she was a resident of Yetter, and not of Pomeroy, and that the court erred in submitting the issue to the jury, It is further argued that she had a right to change her residence at any time, pursuant to Code Section 2224, which provides: 3'3, A married woman abandoned by her husband may acquire a settlement as if she were mmarried,." The quoted section has no application to the case, for several reasons: (i) There is no showing that Mrs. McCullough had been abandoned by her husband. 46 (2) The quoted section has no application to the subject matter here under consideration. It is a part of the Code chapter pertaining to the support of the poor and the obligation of public officials to render public support to those having a "settlement" within their juris- dictions It is urged, however, that a married woman who has separated from her husband permanently may acquire a domicile elsewhere than at his domicile. We have so held in divorce cases, where grounds of divorce and permanent separa- tion were shown, In such a case, jur�idiction in an action for divorce or for separate main- tenance may be acquired by the district court of the county of the residence of either party. If we should say that the evidence tends to show that this lady had good grounds of divorce, in that her husband had "used liquor," or had failed to support her, or that she had really separated permanently from her husband, yet such evidence is far from conclusive. On the contrary, it is very meager. The relators having made a prima-facie showing that her residence was at Pomeroy because that was the residence of her husband, the burden was on the defendants to meet such prima-facie showing. The doubt upon this record on this point is whether there was suffi- cient showing by the defendants to justify a sub- mission of the issue to the jury. The trial court faced the alternative either to instruct the jury peremptorily, upon the prima-facie show- ing made by the relators, or else to submit the issue to the jury- upon the evidence of Mrs. McCullough, tending to rebut the prima-facie showing. It is clear to us that the defendants were not entitled to a peremptory holding in their favor at this point, It is not so clear but that the relators were entitled to a peremptory holding. In any event, the submission of the issue to the jury was without prejudice to the defendants, and they are in no position to complain. It is further argued, however, that the court erred in the form of its instruction on this subject, and that such instruction was itself erroneous, Io such point was made before the trial court, and it is not available to the appel- lants here. They requested a specific instruction on the subject, which was a peremptory direction to the jury to find in their favor on that question. 47 It follows from the foregoing that the three persons here named were. not electors of the district, and their votes should not be counted for any purpose.'" . Blodgett v. Clarke. 177 Iowa 575, 577-579 (1816) Per Curiam. To be eligible to an elective office created by the Constitution, a person must be a qualified elector. State v. Van Beek, 87 Iowa 569. Section 5 of Article 2 of the Con- stitution of Iowa declares: "'No . . . person convicted of any infamous crime shall be entitled to the privilege of an elector." Any crime punishable by imprisonment in the penitentiary is an "infamous crime." Flannagan v. Je-son, 177 Iowa 393. As the punishment prescribed by statute for forgery is confinement in the penitentiary not more than 10 years, the offense is infamous. Sec- tion 4853, Code. In amendment to the petition, plaintiff alleged himself to be a qualified elector, and that he had never been convicted of an infamous crime, but explained this averment of conclusion by saying that, under a void judg- ment rendered by a court without jurisdiction, he had been imprisoned in the penitentiary 3 years and 9 months, in serving a sentence of 5 years, and that the invalidity therein consisted in having convicted him of an offense of which he had previously been acquitted, and in having excluded certain letters which had been admitted in evidence in the former trial. Ieither of these objections goes to the jurisdiction of the court or the validity of the judgment of conviction entered. The case is identified in the pleading as that of State v .BloQdgett, 14+ Iowra 578, the opinion in which discloses that the plea of former adjudication was held not to be good, and his conviction of the offense of forgery affirmed. Manifestly, the facts pleaded in avoidance thereof are insufficient to justify disregarding the judgment as having been entered without jurisdiction, or even erroneously. 48 That decision is conclusive on, the ques- tion of the legality of the plaintiff's con- viction of an in. a.ous crime, and, under the section of the Constitution quoted, we have no option to do otherwise than declare him not entitled to the privilege of an elector, and, therefore, ineligible as a candid.ato for the office of judge of the Supreme Court of this state. T.his being so, he is not in a situation to raise other questions argu oed. - Affirmed. LADD, _AVE'TR, GAYnTOR, PSTOiTN and STI'ER, JJi. , concur, EVAJS, C. J., and Deemer, J., take no part Note: See Barr v. Cardell, 173 Iowa 18 (1915), and see Carl H. Erbe, "Constitutional Provisions for the Suffrage in Iowa, 22 Iowa Journal of History and Politics, 163, C'.tor V 49 Freedom of S oeech and Press Field v. Thornell 106 Iowa 7, 12-16 (1898) Mr. Justice Ladd (sustaining a conviction for contempt of court consisting of the publica- tion of matters ihtended to influence a jury vwhich was engaged in the trial of a case at the time of oublication and distribution of the newpaper in question): "The article is not a fair account of the trial, but rather, as admitted, a state- ment of the petitioner's convictions. Neither the proceedings of the court nor the evidence is given, but coments thereon charging, in effect or by inuendo, that one witness for the state was a jailbird; another, silly and suit- able for the insane asylum; th:-.t four of them were in a deal to convict the defendant; and that, whatever the jury might do, there was no doubt in the mind of every intelligent man, familiar with the facts, that it should acquit him. This was vwhile the case was on trial, and, as the papt-r was published and distributed at the county seat, the petitioner must be presumed to kinow that the article would be like- ly to fall into the hands of te witnesses and jurors in attendance. The question arises, then, vwhether the court may, by contempt proceed- ings, protect witnesses from denunciation and intimIidation by the public press, and the jurors fromi the influence created thereby, and sugges- tions of their proper course during the progress of a trial. It was remiarked by Lord Hardwick, in 2. Atk. 471, that '"there canot be anything of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters." Mr. Cooley, in his work on Torts (page 424) says: "It has also been held in many cases that the publication of an article in a newspaper comuenting on proceedings in court then pending and undet~r mined, or upon the court in its relation thereto, made at a time and under circumstances calculated to affect the course of justice in such proceed- ings, and obviously intended for that purpose, may be punished as a contempt, even though the court was not in session whien the publication 50 was made." In Re Sturoc, 48 N. H., 428, the accused published an article referring to the prosecution and "smelling cormittees"' in goin beyond the liimits of their towns, and inquir- ing: How does it look to you taxpayQrs of New Haimpshire, that your hard-won earnings should be squandered by bigots or demagogues in this way? Yet such -must inevitably be the effect if certain outrageous proceedings late- ly instituted in the town of Sunapee are to be tolerated and sustained." The article was published in the village where the court was in session, and during:- the term ait wli ch the case vwas likely to be called for trial. The court says: "It is ot, however, open to doubt that the article has an obvious tendency to bring the prosecution and the promoters of it into odium and contempt. Til.e .Ihole tone of the article assumes that the urosecution was illegal, oppressive, and unjust; and, in particular passages, it denounces the: prosecu- tion in opprobious and abusive terms. It must have been intended to persuade those vho read it that the prosecution ought not to be main- tained. If jurors, wvho might read the article, should adopt such views of the cause they would be improper persons to try it, and the direct effect would be to obstruct and corrupt the administration of the law. The character of the article, and the time and circustances of the publication oblige us to find that as this was the natural, so it must have been the in- tended, effect of the publication& The natural consequences of his act being to corrupt the administration of the law, the defendant can- not discharge himself by alleging that he meant no harm, and did not su)p.ose that he was doing anything illegal." In Littler v. Thompson, 2 Beav. 129, a published article representing the proceedings as vexatious and the witnesses as guilty of perjury, was adjudged contemptuous. The geneal. doctrine is stated in 2 Bishop, Criminal Law, section 259, to be that any publication, whether by parties or strangers, relatinga to a cause in court, which tends to prejudice the public as to its merits, and to corrupt or embarrass the administration of justice, may be visited as a contemupt; and this includes reflections on the tribunal or its proceedings, or on the parties, the jurors, the witnesses, or the counsel. 51 Wre have discovered no authority denying the power of a court to punish as contemt- an act which tends to impede embarrass, or obstruct it in the discharge of its dutiest The necessity for this power is that the layw may be fairly and impartially administered, uninterrupted by any influence affecting the safety or tending to direct the conclusion of the judge or jurors, or preventing or inter- fering with the officers of the court, or intimidating or coercing witnesses in giving their testimony. Can it be that a court has no power to protect counsel from publications calculated to intimidate and prevent them from a proper defense of suitors? Is it pos- sible that jurors, iwhile in the discharge of their duties, may be held up before the public as without intelligence, and not reliable when ,forced to sit upon the trial of causes? May witnessess who are required to attend trials by compulsory process be denounced as jail birds, conspirators, and fit subjects for the lunatic asylula during the progress, because, forsooth, they may not testify in accordance with the vwhim or judgment of some editor? If so, then attorneys, jurors, and witnesses in attending courts must not pay heed to the fearless discharge of their duties, if they would avoid excoriation of the newspapers, but conform their conduct and testimony to the intimations which may be thrown out in advance. Such is not law. The courts must be left free during the progress of trials to investigate, untraameled by such influences. Newspapers cannot be permitted to invade the sanctity of the courts of justice, assail litigants, in- timidate witnesses, and dictate the verdicts of jurors or the judgments of the court. The trial of De Ford was pending when the article in question was published. The petitioner had every reason to believe it would fall into the hands of the witnesses and jurors, Its natural tendency was to intimidate the witnesses in attendince of court, and to influence the jury in reaching their verdict, The judgment imposed was fully warranted by the evidence and the law State v. Judge Civil Dist. Ct, (La.), 14 South. Rep. 310. It must be added, however, that the courts have no power or desire to con- trol the press in its legitimate sphere. Its freedom is jealously guarded by the law, and made secure in the constitution. It enjoys the utmost latitude in reviewing the action of 52 the courts, and may, after the particular litigation is ended, assail, 1with just crit- icism, opinion, rulings, and judgments with the weapons of reason, ridicule, or sarcasm. "But the liberty of the press must not be confounded with muere license, Liberty of the press stops where a further exercise would invade the rights of others# This pro- vision of the constitution does not author- ize a usurpation of the functions of the courts, Under a plea of the liberty of the press, a newspaper has no right to assail litigatts during the progress of a trial, intimidate witnesses, dictate verdicts or judgments, or spread before juries its opin- ion of the :merits of cases which are on trial," In re Shortride, 99 Cal, 526 (34 Pac. Rep, 227) It is seldom, however, that an honorable journalist so far forgets his self-respect as to trespass upon the rights of the judiciary, or seek to control or improperly influence its conclusions, Courts are constantly passing on questions affecting the life and liberty of the citizen4: as well as the.rights of property; and the freedom of the judiciary to investigate and decide is quite as important to the well- being of society as the freedom of t1he press. Let the courts perform their duties unmolested, but their final judgments, as well as the man- ner of reaching themni, are thereafter open to the world for such criticism or condemnation as taste or necessity may require. As support- ing the views expre.sed, see Peo-ple v. Vilson, 64 Ill. 195; Fishback v. State, 131 Ind. 304 (30 N, E. Rep. ....1088) ers v. State, 46 Ohio St. 473 (22 N. E. Rep, 43); Exparte Barr, 87 Cal, 109 (25 Pac, Rep. 256); State v.Doty , 90 Am. Dec, 671; State v. Judge of Civil District Court, 45 La. Am. 51250 14 South. Rep, 310; State v. Gallowa, 98 Am3 Dec. 404, and note; Cooper v,. People, 13 Col, 337, 373 (22 Paco Rep. 790);- State v. Kaiser, 8 Lawyers Rep. Ann. (Or,) 584, and note (s.c, 23 Pac. 964); State v. Morrill, 16 Ark. 384. -- DISMISSED." State v. Bair 92 Iowa 28, 31 (1894) Mr. Chief Justice Granger (holding valid a statute which made punishable the act of publicly professing to treat diseases, with- out license): ~"It is further insisted that the act under which the indictment was found is in violation of the constitutional provision that "every person may speak, write, and publish ts sentiments on all subjects, be- ing responsible for the abuse of that right. 'No law shall be passed to restrain or abridge the liberty of speech or of the press." Constitution, Iowa, art. i, section 7. The statute in question is a part of a chapter regulating "The Practice of Pharmacy, and the Sale of Iledicines and Poisons," and is designed to guard against evil consequences liable to result therefrom. The prohibitive features of the act do not go to the rights intended to be secured by the constitutional provision as to. speaking, writing, or publishing one's senti- ments, or as to abridging or restraining the liberty of the press, The indictment charges the offense in the language of the law, substantially, which is particularly specific as to the facts constit- uting an offense. In such a case it is sufficient to charge the offense in the language of the stLtute. State v. Curran, 51 Iowa, 112, 49 N. W. Rep. 1006. VWe think the indictm nt is sufficient, and that the court erred in sus- taining the demurrer. While we disapprove the order of the court in sustaining the demurrer, the appeal being by the state, we do not reverse the judgment." * L * ** Chapter VI Religion Section 1., Religious Freedom 1Moore v. .ionroe 64 lowa 367, 368-370 (1884) Mr. Justice Adams (denying an injunction to prevent the reading of the bible in a publin school): "The record shows that the teachers of the school are accustomed to occupy a few minutes each mor~iing in reading selections from the Bible, in repeating the Lord's prayer, and singing religious songs; that the plaintiff has two children in the school, but that they are not required to be present during the time thus occupied. The record further shows that the plaintiff objected to such exercises, and requested that they be discontinued; but that the teachers refused to discontinue them, and the directors refused to take any action in the mat ter , The plaintiff concedes that under a statute of Iowa,.section 1764 of the Code, if constitu- tional, neither the school directors nor courts have power to exclude the Bible from public schools. The provision of the statute is in these words: "The Bible shall not be excluded from any school or institution in tbhis state, nor shall any pupil be required to read it contrary to the wishes of his parent or guard- ian." Under this provision, it is a matter of individual option with school teachers as to whether they will use the Bible in school or not, such option being restricted only by thpe pro- vision that no pupil shall be required to read it contrary to the wishes of his parent or guardian. It was doubtless thought by the legislature that an attempt on the part of the school boards to exclude, by official action, the Bible fromn schools would result in unseemly controversies, to be decided ultimately at the polls, and that such controversies would natur- ally disturb the harmony of school districts 54 55 and impair the efficiency of schools. Whether the provision is a wise one it is unnecessary for us to express any opinion. It is the law of the state, unless unconstitutional. The plaintiff insists, however, that it is unconstitutional. The provision of the constitution with which it is said to conflict is article 1, section 3, bill of rights. The provision is in these words: The general assembly shall make no law respecting an establish- ment of religion, or prohibiting the free exer- cise thereof; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates, for building or repair- ing places of worship, or the maintenance of any minister or ministry." The plaintiff's position is that, by the use of the school house as a place for reading the Bible, repeating the Lord's prayer and singing religious songs, it is made a place of worship; and so his children are compelled to attend a place of worship, and he, as a tax- payer, is compelled to pay taxes for building and repairing a place of worship. We can onceive that exercises like those described might be adopted with other views than those of worship, and possibly they are in the ease at bar; but it is hardly to be presumed that this is wholly so0 For the purposes of the opinion it may be conceded that the teachers do not intend to wholly exclude the idea of worship, It would follow from such concession that the school house is, in some sense, for the time being, made a place of worship. But it seems to us that, if we should hold that it is made a place of worship within the meaning of the constitution, we should put a very strained construction upon it. The object of the provision, we think, is, not to prevent the casual use of a public building as a place for offering prayer or doing other acts of religious worship, but to prevent the enactment of a law whereby any person can be compelled to pay taxes for building or repairing any place designed to be used distinctively as a place of worship. The object, we think, was to prevent an improper burden. It is, perhaps, not to be denied that the principle carried out to its extreme logical results might be sufficient to sustain the appel- lant's position, yet we cannot think that the 56 people of Iowa, in adopting the constitution, had such extreme view in mind, The burden of taxation, by reason of the casual use of a public building for worship, or even such stated use as that shown in the case at bar, is not appreciably greater. We do not think, indeed, that the plaintiff's real objection grows out of the matter of taxation, We infer from his argument that his real objection is that the religious exercises are made a part of the educational systeim into which his children must be drawn, or made to appear singular, and perhaps be subjected to some inconvenience. But, so long as the plaintiffIs children are not required to be in attendance at the exercises, we cannot regard the objection as one of great weight. Besides, if we regarded it as of greater weight than we do, we should have to say that we do not find anything in the constitution or law upon which the plaintiff can properly groiund his application for relief. Possibly the plaintiff is a propagandist, and regards himself charged with a mission to destroy the influence of the Bible. Wbiether this be so or not, it is sufficient to say that the courts are charged with no such mission. We think that the injunction was properly denied. AFF IRIE D." Section 2, Religion as affetin .the Competency of Witnesses Searcy v. Miller 57 Iowa 613, 618-621 (1881) Mr. Justice Day (holding that insensibility of the witness to the obligations ofi an oath may be shown to affect his credibility): 'II. One Tames Harbaugh was introduced as a witness by defendant, and gave important testi- mony. He was then cross-examined as follows: Q. Have you any religious belief? A. Well, it is very weak, if I have any religious princi- ples. I am not much of a religious man. Q. Have you any belief in a state of future rewards or punishments? A. It is very faint. I am actually not a believer in these articles. Q. Have you any belief in a Supreme Being? A. I do not know what it is. Of course there is a first cause for something, but I do not know what it is; I do not know anything to believe upon it. 57 No objection was made to the first ques- tion or answer. The second and third were objected to as incompetent, irrelevant, and i lmaterial. The objection was overruled and defendant excepted. In State v. Elliott, 45 Iowa, 486, it was held competent to prove as affecting the cred- ibility of one whose dying declarations were introduced, that he was a materialist and be- lieved in no God or future conscious existence. This decision is based upon the ground that, whatever rendered a witness incompetent at commnon law, might be shown under section 3637 of the Code of 1873, to lessen his credibility. This section is as follows: "Facts which have heretofore caused the exclusion of testimony, may still be shown for the purpose of lessening its credibility." This section first appeared as section 2589 of the Code of 1851, and after- ward as section 3979 of the Revision. Sections 35 of the Code of 1851, 38 of the Revision, and 53 of the Code of 1873, are as follows: "The terms 'heretofore' and 'hereafter, as used in this Code, have relation to the time when this statute takes effect." Th!e constitution of 1846, article 1, section 4, provides that no person shall be rendered incompetent to give evidence in any court of law or equity, in conse- quence of his opinions on the subject of religion. It is now claimed by appellant that the word "heretofore" as used in sections 2389, Code of 1851, 3979 of Revision, and 3637 of the Code of 1873, has reference to the law when the Code of 1851 took effect, as modified by the constitu- tional provision as above named, and that we were in error, in State v. ElliottLsupra, in referring it to the state of the comon law be- fore that period., So far as we have been able to discover, section 2388 of the Code of 1851, is the first statutory provision on the subject of evidence after the adoption of the constitu- tion of 1846. It provides that every human being shall be competent, except as otherwise declared, and is, in substance, but a redeclaration of the constitutional provision, that no person shall be rendered incompetent on account of his opinions on the subject of religion. Having provided generally for the competency of all persons, the subsequent sections proceed to introduce an exception on the ground of interest, and nearly all the exceptions recognized at 58 cor(on law other than as to persons incompetent at colmon law, on account of the lack of a 'religious sense of accountability to the Omnuiscient Being, who is invoked by an oath." At the time -when section 2389 of the Code of 1851 was enacted, providing that "facts which have heretofore caused the exclusion of testi- mo.y may still be shown for the purpose of lessening its credibility," no case had found its way into the appellate court of thlis State in which the provisions of article 1, section 4 of the constitution, had been applied and enforced. UD to that time the decisions of courts in England, and in this country, had excluded as incompetent, witnesses vho were "insensible to the obligations of an oath, from defect of religious sentiment and belief," and no different rule had been practically authorized by the adjudications of the Supreme Court of this State. N ow, when the word heoretofore"i was used in section 2389, we think it must have referred to facts which the courts had ther-etofore held should cause the exclusion of testimony, rather than to a constitutional provision intended to govern the action of courts, but which had never received judicial application. It is claimi.ed that if section 2389 authorizes insensibility to the obligations of an oath to be shown to lessen the credibility of a witness, it is unconstitutional. It is to be observed, however, tht article 1, section 4 of the constitution simply provides thoat a person shall not be rendered inco-mpetent to give evidence, in consequence of his opinion on the subject of religion, It is not provided that the dredibility of his evidence may not be lessoned. The questions which were objec,;ed to sought to elicit the fact whether the witness had any belief in a state of future rewards or punishments, and my belief in a Supreme Being. In I Greenleaf on Evidence, section 369, it is said: "It may be considered as now generally settled in this country, that it is not material whether the witness believes th e punishment will be inflicted in this world or the next. It is enough if he has the religious sense of accountability to the Omniscient Being, who is invoked by an oath." In Ormichund v. Barker, Willis, 545, S. C., 1 Atk,, 21, the roper test of a witness on the score of a religious belief was settled to be the belief of a God, and that he will regard and punish us according to our deserts, See authorities cited in note 3 to 59 section 369, 1 Greenleaf on Evidence. In ad- mitting proof of the fact that the witness did not believe in a futuo state or rsoards and punis'monts, the court erred. III. The questions under consideration were allowed to be asked of the witness on cross-examination. This was not proper. In 1 Groonleaf on Evidence, section 370, it is said: "The State of his religious belief, at the time he is offered as a witnss, is a fact to be ascertained. The ordinary )mode of show- ing this is by evidence of his declarations, proviously made to others, the person himself not being intorrogated. The want of such religious belief must be established by other means than the examination of the vwitnoss upon the stand. He is not to be questioned as to his religious belief, nor required to divulge his opinion upon that subject in answer to questions put to himu vhriile under examination. If he is to be set aside for want of such religious belief, the fact is to be shown by other witnesses, and by evidence of his pre- viously expressed opinions voluntarily made known to others." Comonwealth v. Smith, 2 Gray, 516. See Grocnlleaf on Evidence, 12th edition, page 417, note 2, and page 418, note 1. We discover no error in the instructions. It is claimned the verdict is excessive, but as the judgment must be reversed on other grounds, this objection need not be considered. REVERSED." * * * * * * * 60 Chapter VII Procedure in Criminal Prosecutions In re Bresee. 82 Iowa 573, 577-578 (1891). Mr. Justice Granger (holding that determination of insanity is not required to be by jury where the object of the inquest is to ascertain whether the party before the court is a fit sub- ject for treatment in the asylum for the insane): "III. The appeal from the action of the court, on the motion to dismiss the appeal and affirm the order of the cormmissioners, presents the question whethr the adjudication in the habeas corous proceeding operates to deprive the appellant of the right to another trial in the district court on her appeal. It is especially urged, in support of another trial, that the appellant was entitled to a trial by jury in the district court, The determination of this question is important. It is purely a special proceeding, and hence, toechnically, not a "?civil action," which is defined to be a proceeding in which one party, knovn as the "'plaintiff," demands against another party, known as the 'dcfendant,"' the protection of a private right or the redrecss of a private wrong. Code, sec. 2505. Being another remedy in a civil case it is a special proceeding, Code, sec. 2507. Spcoial proceedings are not classed as "ordinary" or ~'oquitablo" by the Code, and we may now con- sider its provisions as to what causes are triable by jury. Section 2740 is as follows: "'ssues of fact,in an action by ordinary proceeding, must be tried to a jury, unless the same is waived. All other issues shall be tried by the court, unless a reference thereof is made." The issues in this proceeding are "other" than those "in an action by ordinary proceedings," and, hence, under the letter of the statute, are to be tried by the court, It may be well here to observe that proceedings denominated as "special"' have been in this court, where the issues below have been tried to a jury; but an examination will show, we think, that in each of such cases the pro- ceeding, if special at its inception, had so changed in its progress as to present parties plaintiff and defendant with private right to be determined, and, hence, became an action by ordinary proceedings. 61 It is urged that the appollant was entitled to a jury trial in the district court, under the constitutional guaranties that the right of trial by jury shall remain inviolate; and in all criminal prosecutions, and in cases involving the life or liberty of an individual, the accused shall have a right to sp.eedy and public trial by an impartial jury. These provisions are found in sections 9 and 10 of article 1 of the constitution of the state. In Black Haw1 Co. v. Springer, 58 Iowa, 417, this court considered the rights of a person charged with insanity to a trial by jury under these provisions of the constitution, and hold thait they applied "only to crim;inal prosecu- tions or accusations for offenses against the crilminal law, where it is sought to punish the offender by fine or' imprisomient," It is also there determined that the "inquest of lunacy' is not a criminal proceeding, Chavannes v. Pricstlo , 80 Iowa, 916, It thus appears that the constitution does not impair the statu- tory authority as to how the issues in such a proceeding are to be tried. , , .' State of Iowa v. IMvosher 128 Iowa 82, 89-90 (1906) Mr. Justice Ladd (holding that a disbarment proceeding is mot criminal in its nature but is rather a special civil proceeding): "When it was proposed to read the deposi- tions so taken in evidence, objection was made on the ground that the accused was entitled to be confronted in court by the witnesses against him. Iere this a criminal action, the point might be well taken. But the pro- ceeding is civil, and wuithin the class desig- nated special proceedinEs in the Code. State v. Clark, 46 Iowa, 155; Bar Ass'n v, Randel, 158 N. Y. 219 (52 N. E. 1109); Re Evans, 22 Utahl, 366 (62 Pac. 913, 53 L. R. A. 952, 83 Ail. St. Rep. 794). The object of the proceed- ing is not punishment of the delinquent, but the "protection of the court, the proper administration of justice, the dignity and purity of the profession, the public good, and the protection of clients.' State v. 62 Finn, 32 Or. 519 (52 Pac. 756); Ex parte Wall, 107 U. S. 273 (27 Ls Ed. 556). The use of depositions in a civil action or other civil proceeding is expressly authorized by statute (section 4684 et seq., Code), and there is no ground for making an exception of disbar- ment proceedings, The decision in the Matter of an Attorney, 83 N. Y. 164, relied on by appellant, was put on the ground that the statutes of that State did not authorize the taking of depositions in special proceedings. In re Siirmp0son, 9 N. D. 379 (83 N. .J 541), is not in point, for the court merely held that certain affidavits were not admissible in evi- dence. Nor are the decisions of what was really before the courts In re Duncan, 64 S. C, 461 (42 S. E. 433), and -State v. Finley 30 Fla, 331 (11 South. 674, 18 L. R. A. 401). In the former the evidence taken in the trial of the cause, out of which the disbarment proceedings arose, was offered, and in approving the ruling by which it was rejected the court coimented on the desirability of the judge hearing the witnesses. In the latter an order referring the case to a special master to take testimony was disapproved, but the error was held to have been waived. The de- cision in the New York case seems to have been misapprehended, and the necessity of confront- ing the accused face to face by witnesses to have been stated on the assumption that the proceeding is criminal in its nature. On this point all said in either case was dicta. As previously stated, this is not a criminal prosecution, and the requirement of the Con- stitution that the accused be confronted by the witnesses against him has no application. As directly in point, see In re Tellcome, 23 Mont. 260 (58 Pac. 711). Te depositions were rightly received in evidence. . . Busse v. Barr 152 Iowa 463, 464-471 (1906). Per Curiam,-- The appellant, being in the custody of the defendant under sentence of execution, on conviction of the crime of mur- der in the first degree, sued out a writ of habeas corpis before the judge of the district court of the county in which the State peni- tentiary in which he is confined is located, 63 asking discharge for reasons which will be considered in detail. After a trial on the merits, the district judge dismissed his petition, and remanded him to defendant's custody, to await executipn, which, after two postponements, has been set by the Governor of the State to take place on the 12th day of December next, The sentence for capital punishment was imposed in due form by the district court of Bremer county, to which the prosecution against the plain- tiff was removed on change of venue from Butler county, where this plaintiff was indicted at the October term, 1901, for the murder of his wife, having been bound over to await the action of the grand jury on a preliminary examination. I. The grand jury of Butler county, duly impaneled, after the appellant was committed on preliminary examination, was composed of seven members. The appellant challenged one of the members of the grand jury for disqualification to act as a grand juror in the case against him, and this challenge was sustained and such grand juror ordered and directed not to act in said case, and he did not act as such grand juror there- in. But the vacancy in the grand jury, occasioned by the challenge of this grand juror was not filled and the six grand jurors as to whom no objections were made, proceeded to act as a grand jury on the case of the appellant and returned into court the indict- ment on which he was subsequently tried. Appeljlant now contends that the vacancy should have been filled by the selection of another grand juror for appellant's case, under the provisions of Code, section 5246, as amended by the 27th General Assembly, chapter 114, section 2 (Code Supp. page 551) as follows: If a challenge to an individual grand juror be allowed, he shall not be present at or take any part in the consideration of the charge against the defendant. If a challenge to the panel is allowed, or if by reason of challenges to individual grand jurors being allowed, or if for any cause at any time, the grand jury is reduced to a le~s number than seven, a new grand jury shall be im- paneled to inquire into the charge against 64 the defendant in whose behalf the challenge to the panel has been allowed, or the panel of the jury so reduced below the number re- quired by law shall be filled as the case may be, If a challenge is allowed to the panel the names of jurors required to impanel a new jury shall be drawn from the grand jury list. If such grand jury has been reduced to a less number than seven by reason of challenges to individual jurors being allowed, or from any other cause, the additional jurors required to fill the panel shall be sumimoned, first, from such of the tvelve jurors origin- ally summoned which were not drawn on the grand jury as first impanelled, or excused, and if they are exhausted, the additional number required shall be drawn from the grand jury list and the court shall, when necessary, issue a venire to secure attendance of such additional jurors. The persons so served shall serve only in the case, or cases, in which, by reason of challenges, or other causes, the regular panel is set aside or is insuffi- cient in number to find an indictment. The contention of this appellant is that a grand jury conposed of only six grand jurors, who were qualified to act upon his case, was not a lawful grand jury, and that the indictment returned by such six grand jurors was a nullity, and therefore the conviction of appellant on the charge in such indictment was also a nullity and furnishes no legal justification for his detention by the warden of the penitentiary on such conviction. A sufficient answer to this contention is that, although the omission to fill the vacancy in the grand jury for the con- sideration of appellant's case may have been an error in procedure, it was an error which was waived by the failure of the appellant to make any objection at the time to the submission of his case to a grand jury composed of only six members qualified to act, and by failing to make any objection to his being tried on the indictment as returned. State v. Theeler, 129 Iowa, 100. In this case it was held that a conviction on an indictment found by not less than five grand jurors, when the panel of the grand jury consists of seven members (see Code, section 5274) is not reversible on that ground, although one of the seven members of the regular panel is disqualified to act in the finding of the particular indictulent, and the place of such disqualified grand juror has not been filled as required by statute. 65 It is contended, however, that the right to indictment by a lawful grand jury as a basis for further proceedings in a criminal prosecu- tion is constitutional and cannot be waived, and that Code, section 5321, which denies to a defendant, who has been held to answer be- fore the impaneling of the grand jury which returns the indictrment against him, the right to move to set aside tbh.e indictment on the ground "that the grand jury were not selected, drawvn, siummoned or sworn as prescribed by law" (Code, section 5319) is unconstitutional. The provision of the Constitution (article 1, section 11) is that no person shall be held to answer for a felony, unless on indictment by a grand jury, with certain exce t;ions not here material,.and, by an armendxment to the Constitu- tion adopted in 1884, it is proivided that the grand jury may consist of any nuiber of members, not less than five nor more than fifteen, as the General Assembly may by law provide. The appellant contends that, though the General Assembly might have provided .for an indictment by a grand jury of not less than five members, yet, as in this case, the statute required seven members, an indictment by a less number was not valid, and that, therefore, to subject the appellant to trial on an indictment not found by a grand jury of seven qualified grand jurors was a denial to hi.. of his constitutional rights. It is evident, however, that the objection to an indictment found by a grand jury of seven members duly constituted, one only of whom was disqualified for a particular case, so that the grand jury was, in fact, composed of at least five members who joined in finding the .ndictment, five grand jurors being authorized to find an indictment as provided by the statute above cited, was an objection which could be waived by the defend- ant, or could be denied to him by statute, without impDairment of any constitutional pro- vision. We have held that the constitutional right to twelve trial jurors can be waived, at least to the extent of consentis.ing to a trial by eleven jurors, al.though, under the Constitution, twelve jurors are required and must unite in a verdict. State v. Kaufman, 51 Iowa, 578; State v. Grosshe im, 79 Iowa, 75. That constitutional provisions for. the benefit of persons accused may be waived and a conviction based on such waiver will be valid, provided it is pronounced by a court having jurisdiction and duly constituted to try the case, is settled beyond all contro- versy. Harris v. Peoeole, 128 1ll 585 (21 N. E. 563, 15 Am. St. Rep. 153); CoxnmLonwealth v. Dailev, 12 Gush. (ass.) 80; State v. acktt, 59 Minn. 69 (38 N. W. 773); People v. Petrea, 92 N. Y. 128, 142; Peole v. Mack, 54 N. Y. Supp. 698; Hallinger v. Davis, 146 U. S. 314 (13 Sup. Ct. 105, 36 L. Ed. 986). The objection to the grand jury now relied upon was not urged at the time t he defendant's case was submitted to it, althouOh he. had himself, by challenge to one of the grand jurors, brought about the deficiency in numra- ber of which he now complains; nor was it urged during the trial, nor by motion in arrest of judgment, nor as error on appeal to this court. If the right to have his case determined by a grand jury of seven qualified members was a constitutional right, he cer- tainly waived it by not insisting upon such right at any stage in the proceedings, betwveen the submission of his case to the grand jury and the final affirmance of his conviction on appeal to this court. II. It has not seeimed necessary to amplify the views expressed in the proceeding division of this opinion for the reason that tV.e objec- tions of the appellant to the indictment could in no event be available to him in this proceed- ing by habeas corus to secure h>s discharge. In the chapter of the Code regiu...ting the procedure under the writ it is provided (sec- tion 4451) that it is not perli;e :ible in such proceeding "to question the corrcctness of the action o- the grand jury in finding a bill of indictment, or of the trial jury in the trial of a cause, nor of a court or judge when lawfully actinEg within the scope of their authority. " Counsel attempt to meet this statutory provison by the claim that it is in conflict with the guaranty fond in our Consti- tution (article i, section 13) that "'the writ of habeas corous shall not be suspended or refused when application is made as required by law, unless, in case of rebellion or invasion, the public safety may require." But certainly no more is guarantied than the right to such relief under the writ as is custom.arily granted at coimon law, and it is well settled that habeas corpus will not lie at cormmon law to correct errors of a court having jurisdiction of the subject-matter and the person charged. Zella v... MclHenrz, 51 Iowa, 572, 277; State v. Orton, 67 Iowa 554; In re Pikulik, 81 Wis. 158 31 N. W. 261); In re Schuster, 82 Wis. 610 (52 N. W. 757). Thus it was held in Turney v. Barr, 75 Iowa, 758, that a conviction based on a verdict directed by the court and not volun- tarily rendered by the jury trying the case was not so far void as to admit of collateral attack in a habeas corpus proceeding,for the court rendering such judgment of conviction had jurisdiction to try the case, and no error or irregularity, however gross, would render the judgment subject to such collateral attack. Certainly a mere irregularity in tan finding of the indictment could not have greater effect to render the conviction void than the total want of a verdict on which to render judgment. An adequate remedy against a conviction procured by errors and irregularities is afforded by appeal. Church, Habeas Corpus (2d Ed.) section 362 et seg. This remedy was resorted to by appellant, but he did not see fit to urge that the court erred in any way with reference to the finding of the indictment. Nor did he question its validity. Plainly, he cannot now, on a habeas corus proceeding, question the validity of the conviction on these grounds. The rule that one convicted in a court having jurisidction cannot question the validity of the indictment on which he is tried, or the regularity of the subsequent proceedings, is not a mere statutory regulation, but it is a part of the cormmon law, with reference to which our constitutional guaranty must be interpreted. Church, Habeas Corpus (2d Ed.) section 244. III. Another ground urged as rendering the confinement of appellant illegal is that the Governor had no lawful authority to issue the warrant for the execution of appellant, after the day of execution fixed in the original sentence had passed, vithout being enforced by reason of the pendency in this court of the appeal from such conviction. This claim is predicated upon the following facts: On the consideration of the appeal in this court, from the conviction and sentence to capital punish- ment, the judges of the court were equally divided upon the question whether there was error in the instruction of the lower court as to the definition of manslaughter, an offense 68 necessarily included in that of iwurder in the first degree, with which the appellant was charged, and as to which an instruction was necessary. State v. Busse, 127 Iowa, 318. This equal division resulted in the affirmance of the conviction. See Code, section 195. The views of the judges were stated in the two opinions, each of which announced that, by reason of the equal divi- sion of the court, on this question, the judgment of the lower court was affirmed. It is claimed by appellant that no other judgment than this announcement ofcpinion and the consequent affirmance of the judg- ment of the lower court was entered on the records of this court, and therefore that the Governor did not have before him any judgment of this court under which he could act in issuing his warrant for the execution of appellant, as provided in Code, section 4746. The plain answer to this contention is that this court does not have authority in criminal cases to enter any other judgment on an affirmance of a judgmaent of conviction, from which an appeal is prosecuted, than the judgment which is annouficed in its written opinion--that the judgment of the lower court is affirmed, Such opinion is duly entered of record in the office of its clerk, and is the record of its actionb The judgment of convic- tion remains the judgment of the lo-er court, and it is on such judgment that all further proceedings are had. Wfhen the Governor had before him in proper form, by copy duly certi- fied, the opinions of the court, announcing its equal division and the consequent affirm- ance of the conviction in the lower court, he had the judgment of this court, on which it was his dut-y to issue a warrant for the execu- tion of the appellant. No other judgment could have been rendered in this case by this court, and no other judgment is, in our opinion, con- templated by the section of the Code last above referred to. IV. In this connection we may properly note the claim that the provision of Code, section 195, that, when the court is equally divided in opinion, the judgment of the court below shall stand affirmed, if applied in a criminal case, is in conflict with the provisions of Code, sections 5376 and 5377, that, if there is a reasonable doubt of the guilt of the defend- ant, or as to the degree of the offense charged of which he is guilty, he shall be acquitted, 69 or convicted only of the lower degree, as the case may be. But the sections relating to reasonable doubt are applicable only to a jury trying questions of fact, and not to a court deciding questions of law. They are in the chapter regulating trial by jury in criminal cases. This court, in determining; whether it should reverse the judgmiient of the trial court for alleged errors co.mmitted, was unable to reach the conclusion, by a majo1ity, that there was error. The legitimate and r gcogiized pre- sumption was that thie -roceedings were regular and proper, a d the conviction could not be set aside unless a rajority of te--: court found that error ha.d been corfmmritted. e have exami ned the record wit care and considered fully the questio.ns -i~olvced, and reach the conclusion that th.ere. is no error on the record, The order of the trial judge, dismissing plaintiff's petition and remanding him to the custody of defendant, is affirmed. * *> * * * 70 Chapter VIII Trial by Jury The State v. Ill. 74 Iowa 441 (1888). The defendant was tried by a jury in a justice's court on an information which charged him with having ovwned and kept intoxicating liquors, with intent to sell the same contrary to law. He was convicted and adjudged to pay a fine. From that judgment he appealed. In the district court he consented to a trial with- out a jury, and was again convicted; and, from the judgment rendered, appeals to this court. ROBINSON, J. -- The only question presented by this appeal is the power of the defendant to waive his right to a trial by jury in the district court. It is contended by appellant that such right did not exist, and that this case falls within the rule announced in State v, Carman 63 Iowa, 130, and State v. Larrigan, 66 Iowa, 426. In each of those cases the defendant was tried on an indictment, and it was held that section 4350 of the Code was an iiperative pro- vision, which excluded the jurisdiction of the court, without a jury, to try an issue of fact presented by indictment. In this case, defendant was accused, by information, of an offense of which the district court had only appellate jurisdiction. Section 4702 of the Code provides that a case of this kind "'shall stand for trial anew in the district court in the same manner as it should have been tried before the justice'." It should have been tried before the justice in one of two modes: either by the court or by a jury. The provisions of the Code which apply in this case are as follows: "'Sec. 4669. Upon a plea other than a plea of guilty, if the defend- ant do not demand a. trial by jury, the justice must proceed to try the issue, unless a change of venue be applied for by defendant." "Sec. 4672. Before the justice has heard any testi- mony upon the trial, the defendant may demand a trial by jury. " It will be noticed that the proper manner of trying a case of this kind in justice's court is to try it to the justice, 71 unless a jury is demanded by defendant. In other words, if he fail to demand a jury, he waives the right to be tried by one. This being the case in justice's court, and the cause being triable in the same mode or manner in the district court, the defendant had the power to conLsent to a trial to the court. 110 was not denied the right to a t:ial by jury, and cannot ,-now be heard to coriplain tha.t he was not so -tried. AFF-L7ED. State of Iowa v. Dou lass 96 Iowa 308 (1895). The defendant was accused b- indictment of the criime of nuisance, co i::.::ettcd by main- taining a place for the kee-,ing for ssale and selling intoxicatin., liquors in violation of law. He was tried by the court without the aid of a jury, was found guilty, and adjudged to pay a fine of three hundred dollars and costs, From that judgment he appeals.--Reversed. ROBITNSON, Y.-- The defendant entered to the indictment a plc e of not guilty. The -record shows that a jury was waived, and that the cause was tried by the court without a jury. The only question, we find it necessary to determine is whether a jury m:-ay be waived in a criminal pro- ceeding prosecuted by indictment, and the cause be tried by the court. This question was con- sidered, and fully answercd in th:e negative, in State v. Carman, 63 Iowa, 100 (18 i,. W. Rep 91,) TCat case was followed in State v. Larrigfan, 6 Towa, 426 (29 N. T. Rep. 907). It is insisted on behalf of the state t]hat the decision in those cases is wrong, asd t]hat they shou, be overruled; tha t trial by jury is not made compulsory by thl.e con'rs;i ttion of this state, but th.,t i t is a io rci: r:;ht, that may be w-ived. Section 9 of article 1 of the constitution provides that ;the right of trial by jury shi.ll rcemain :i.nviolate;" and section 10 o-f the same article provides thst "in all crim- inal prosecutions, and in cases involving the life or liberty of an individual, the accused shall have a right to a speedy and public trial by an impartial jury." It may be conceded that these provisions do not require that all trials in criminal cases be by a jury, but it does not follow that in all such trials juries may be waived. Section 4547 of the Code, relating to trials in criminal cases in district courts, provides that "'issues of fact shall be tried by a jury;"' and section 4350 further provides that "'an issue of fact must be tried by a jury of the county in which the indictment is found unless a chanGe of venue has been awarded." These provisions apply to issues of fact in criminal cases raised by pleas to indictments. There is no provision for the trial of such issues excepting by jury, The statute has not conferred upon the court jurisdiction to try them without the aid of a jury, and jurisdiction cannot be conferred by consent or agreement of parties. The question is not whether rights which are guarantied by the constitution may be waived, but whether an absolute jprovisbn of the law may be set aside, and a power which the statute has withheld by conferred by agreement. Our conclusion that it cannot be done; that a jury cannot be waived, and a trial be had by the court, when there is no provision of law authorizing it,--is in harmony with the decisions of other states, some of which were rendered under provisions of law not so exacting and restrictive as are the laws of this state. Arnold v. State, 57 N. W. (Neb.) Rep. 378; State v. Lockwood, 43 Wis. 403; Cancemi v. People, 18 N. Y. 155; Williams v. State, 12 Ohio St. 622; Allen v. State, 54 Ind. 461; Hill v. Pe e, 16 Mich. 351; State v. Maine, 27 Conn, 281; Bond v. State 17 Ark. 290; Wilson v. State 16 Ark. 601; People v. Smith, 9 Iiich. 193; 6 Cr. Law Hiag. 182; Cooley, Const, Lim 319. In justices' court, in this state, criminal cases are properly triable to the justice, unless a jury is demanded by the accused, Code, sections 4669, 4672. Section 4702 of the Code provides that criminal cases are triable on appeal in the district court in the manner in which they should have been tried before the justice; and it was held in State v. Ill. 74 Iowa, 441 (58 N. U. Rep. 143), that in: such a case a jury may be waived in the district court, It is suggested in behalf of the state that if the rule of State v. Carman, supra, be adhered to, it should be applied only in cases involving felonies, and not those for misdemeanors only. The rule was establish- ed by the general assembly, and its application must be determL.ied by the legislative enact- ments. It cannot be extended or modified by the courts. VWe are satisfied with the rule announced in State v. Carman, aned adhere to it. Other questions discussed in arriument are based upon the evidence, and icay not arise on another trial. Therefore they are not determined. For the reasons soen the judg- ment of the district court is reversed. Kinne, J., dissents6 The State v. Grossheim 79 Iowa 75 (1890). DEFENDANT was convicted of tIhe crime of assault with intent to coiimmit rape, and sentenced to imprisonment in the penitentiary for the term of five years. He appeals. ROBINSON, J.-- The indictment charges that the assault in question was made upon a female of the age of eleven years, with intent to wilfully, unlawfully and feloniously ravish and carnally know her, by force and against her will. The defendant pleaded not guilty. I. A jury of twelve men was impaneled, and the trial of defendant coummenced. On the second day of the trial one of the jurors was excused on accounA of his serious ill- ness, and, with the consent of defendant, duly entered of record, the trial proceeded under an agreement, also made of record, that the verdict of the eleven jurors should "be as valid an . b-inding as though randered by the full jury." Judgement was rendered on the verdict of eleven jurors. A..ollant insists that he was not tried and convicted by a legal jury, and cites the cases of State v. Carman, 63 Iowa, 130, and S-ta v. Larrigan, 66 Iowa, 426, as supporting the principle for which he contends. Those cases are authority for the rule that a jury cannot be waived in 74 in a criminal case, for the reason that the statute provides that issues of fact in such cases shall be tried by jury. The essentials of a legal jury were not considered. But it is said that the constitution of the United States and the constitution of the state of Iowa contemplate a trial by a jury of twrelve persons, and that a legal jury, in a case of this kind, cannot consist of a less number; therefore, that the case of Stato v. Kaufman, 51 Iowa, 578, should be overruled. The right of the defendant, with the consent of the court and state, to waive a jury of twelve men -and accept the verdict of eleven, was fully considered in that case, and the con- clusion reached was that it could be done. We are of the opinion that the decision is right, and are satisfied with the grounds upon which it rests. , . * * * * * * * 75 Chapter IX Due Process of law The State of Iowa v. Height. 117 Iowa 650, 654-660, 665 (1902) Mr. Justice idcClain (reversing a conviction based in part upon evidence derived from physical examination of the defendant without his consent): "In many of the states are found constitu- tional provisions similar to those of the fifth amendment to the federal constitution, which, of course, has no application to proceedings in state courts (Sp ies v. Illinois, 123 U. S. 131 (8 Sup. Ct. Rep, 21, 31 L. Ed. 80); Presser v. Illinois, 116 U. S. 252 (6 Sup. Ct. Rep. 580, 29 L. Ed. 615); Twitchell v. Com, 7 WTall. 321 (19 L. Ed. 223), to the effect that the defendant in a criminal prosecution shall not be compelled to be a witness against himself; and it is argued by counsel for prosecution th.t, even if such provision would render the evidence in question incompetent in such states, the absence of a like provision from our consti- tution renders such an objection unavailing in our courts, for Code, section 5484, which seems to contain the only statutory language on the subject, simply provides that "defendants in all criminal proceedings shall be competent witnesses in their own behalf but cannot be called as witnesses by the state." Pyrhaps this language is not broad onough to cover the general ground of the usual constitutional guaranty, but 1we cannot concede that there is in the constitution of our state no guaranty against inquisitorial proceedings for the pur- pose of compollingC a defendant to disclose criminating evidence. Our constitution does explicitly provide (article 1, soction 9) that 'no person shall be deprived of life, liberty or property without due process of law," and the term "due process of law" has received by this court, as nell as by all the courts of this country, a very broad and liberal inter- proetation. in Foule v. Mann, 53 Iowa, 42, it is said (quotin from WIestorvelt v. Grg , 12 N. Y, 209 (62 Am. Dc. 160) that it "undoubt- oedly moans in the due course of legal proceed- ings, according to those rules qnd forms which have been established for the protection of 76 private rights," and (quoting from Bank v. Okel, 4 Wheat. 235 (4 L. Ed. 559) that it was intended thereby "to secure the individual from the arbitr .ry exercise of the powers of government unrestrained by the established principles of private rights and distributive justice." In Trustees of Griswold College v. City of Daveniort, 65 Iowa, 633, te said: "The rule in respect to due process of law, stated in a general way, is said to be this: That everyone is entitled to the protection of those fundamental principles of liberty and justice whic lie at the basis o -ll our civil and political institutions'" But further citation of authorities is not necessary to establish the general propositio.: that funda- mental pri.nciples of judicial procedure, whether in civil or iminal cases, as they existed and were recognized in the courts of England and the American colonies prior to the adoption of the federal and state consti- tutions, are intended to be preserved by this guaranty of due process of law, and that, while forms may be chainyed, essential guaranties cannot be taken away even by attempted legis- lative enactment. For instance, the rule of evidence that involuntary confessions cannot be shovwn as against the defendant in a criminal prosecution is not only not expressly recognized anywhere in our constitution, but it is not even embodied in the stotutory provisions with reference to evidence; and yet can any one suppose that an. act of the legislature abrogat- ing this rule, and alloving confessions of a defendant, extorted by prolises or threats, to be shovwn in a criminal proceeding, would be upheld? A complete answer to any such legisla- tion would be that it deppived the accused of one of the protections affordod him from time immemorial by rules of evidence so fully recog- nized and so fundamental with reference to criminal procedure that it must be contrary to due process of law in criminal cases, In the federal courts, and in the courts of those states whose consttitutions contain guaranties against cormpelling o.ae accused of crime to -te a witness against himself, it is well settled that in neither criminal nor civil cases can a witness 77 be required to give self-crimliinating evidence. Emery's Case, 107 I ,Mass. 172 (9 Am. Rep. 22); Counselman v. itchoclk, 142 U. S. 547 (12 Sup. Ct. Rep. 195, 35 L. Ed. 1110); State v, Simmons Hardware Co., 109 Mo. 118 (18 S. . Rep. 1125, 15-L. R. A, 676). It is true that in most of the cases in which the maxim, 'iTnemo tenetur seinsum accusare," has been considered with reference to its effect as applied to statutory provisions tending to deprive the witness of the benefit thereof, the constitutional pro- si.ons against compelling the defendant in a criminal proceed- ing to testify- against himiself ave been referred to; but, in. dtermining whether i-ch an express constitutional guaranty is essent -ial to the pre- servation of the principle as a fundameintal rule of criminal procedure, it is pertiert. to suggest, first, that, no matter how restricte- the consti- tutional guaranty, it has been iv n: o the sa.me broad and liberal interpretation. Thus it is held that although the languae of th1,. constitutional provision may sirimply be that no :crson shall be required to testify against .hiuself in a criminal case, yet this guaranty amounts to a -p rohibition against requiring a witness in a civil case to disclose facts tending to show ]:him guilty of a crime. State v. Simons -ardware Co., 109 Mo. 118 (18 S. W. Rep. 1125, 15 L. R. A. 676). Such guaranty is applicable to a witness before any tribunal and in any proceeding. State v. Yoa-g, 119 Mo. 495 (24 S. W. Rep. 1038). And statutes which require : . tnesses in certain penal actions to testify, regardless of wlether their evidence will tend to crin.inate them, guaranteeing them at the same time against their testimony being used to convict for a criie thus disclosed, are unconstitutional, notwithstanding the guaranty. See Counselman v. Hitchoock, 142 U. S. 547, 565 (12 Sup. Ct. Rep. 195, 35 L. Ed. 110), and many cases there cited and reviewed. T1( rule against requiring a witness to give self--cri:Lminsting evidence in a::y judici~:. proceed ng is much older than our constitution. It i s one of the fundamentals of the cormlon lavw. The rule itself and the rea4sons for it are thus stated by an eminent authority: 'Upon a pr n:cip:le of humanity, as well as of policy, every w-it es.cs is protected from answ:ering questions by doi wi he lwould crii:inate himself,--oif pol. cy, i:ocause it wrould 78 place the witness under the stron;Gest tempta- tion to commit the crime of perjury; and of humanity, because it would be to extort a con- fession of the truth bY a kind of duress, every species and degree of which the law abhors. It is pleasing to contrast the human- ity and delicacy of the law of England in this respect with the cruel provisions of the Roman law, which allowed criminals, and even witnesses in some instances, to be put to the torture for the purpose of extorting a confession." 1 Starkie, Evidence, 41. And see 1 Rosoce, Crim- inal Evidence, 150; Broom, Legal Maxims, 968. In Peo jle v. Forbes, 143 N. Y. 219, 227 (38 N. E. Rep. 303, 305), this language is used: 'These constitutional and st-.tutory provisions (referring to the constitution and statutes of Nev York on this subject) have long been regarded as safe- guards of civil liberty quite as great and im- portant as the privileges of the writ of habeas corpus, or any of the other fundamental guaranties for the protection of personal righits. W en. a proper case arises, they should be applied in a broad and iiberal spirit, in order to secure to the' citizen that immunity from every species of self-accusa.tion imp1 li:d in the brief and compre- hensive language in which they are expressed The security which they afford to il citizens against the zeal of the public prosecutor and public clamor for the punisihnent of crime should not be impaired by any narrow or tecnical views." The origin of the doctrine embodied in the maxim, "Nem1Te.o tenetur seipsum acusare," seems to be obscure. Perhaps it o:riginatEd in a protest against the inquisitorial procedmure of the ecclesiastical courts, and was introduced by statutes See article by Profess:eor Vfigm-,nore in 5 Harvard Law Review, 71. But at any ,:ate it became a general principle of the co;mon-law sys- tem of jurisprudence before the settlement of this country, and was regarded as a guaranty against inquisitorial proceedings. In Brown v. Valker, 161 U. S. 591, 596 (16 Sup. Ct. Rep. 644, 646, 40 L. Ed. 819), this language is used with reference o it: "The maxiTm 'Nemo tenetur seinsum accusare,' had its origin in a protest against the inqu.isitorial and man:ifestly unjust methods of interrogatin, accused persons, which has long obtained in tle continontal system, and until the expulsion of the Stuarts from the British throne, in 1608, and the erection of additional barriers for the prototion of the 79 people against the exercise of arbitrary powers, was not uncoimmon even in England. Whilo the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparant connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the tempta- tion to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throcl~morton and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent ac- quiescence of the courts in a popular demand. But however adopted, it has become firmly embedded in English as vwell as in American jurisprudence* So deeply did the iniquities of the ancient system impress thoemselves upon the minds of the Alerican colonists, that the states, with one accord, made a denial of the right to question an accused person a part of their .fundamental law, so that a mAxim which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment." And in Bram v. U. S'., 168 U. S 533, 545, (18 Sup. Ct. Rep. 183, 187, 42 L. Ed. 568), after quoting this language, the court continues: 'There can be no doubt that long prior to our independence the doctrine that one accused of crime could not be compelled to testify against himself had reached its full development in the common law, was there considered as resting on the law of nature, and was embedded in that system as one of its great and distinguishing attri- butes." And in Counsolman v4 Hitchcock, 142 U. S. 547, 563, (12 Sup. Ct. Rep. 195, 198, 35 L. Eds 1110), the court says: ' It is an ancient principle of the law of evidence that a witness shall not be compelled in any proceeding to make disclosures or to give testimony which will tend to criminate him, or subject him to fines, penalties, or forfeitures." 80 Notwithstanding the fact already suggested that the cases heretofore cited refer to a form of constitutional orovision not found in our own bill of rights, we are convinced that the principle itself is too fundamental to have been purposely omitted from the charter of liberties of the people of Iowa, and that, had there been no such specific provision anywhere, the same result would have been reached under the general guaranty of due process of law. If such a guaranty is not thus to be iniplied, then we have in this state the anomalous situation that by legislative provision the inquisitorial proceedings, so generally referred to as reprehensible, and the absence of whiich is so sonstantly mentioned as one of the excellencies of the conmon law, m ighit be introduced. There would be nothing unconstitutional, under such a construction, in a statute which should restore torture by the thumibscrew or the boot as a legitimate means of securing evidence in a criminal prose- cution. A constitutional guaranty against self-criminating evidence does not make it unlawful to require defendant to uncover his face or hands, or take his feet from under a chair, in the courtroom, for purposes of iden- tification, State v. Prudhormie, 25 La. Ann. 523; Johnson v. Com., 115 Pa. St. 369, 395, (9 Atl. Rep. 78); State v, Garrett, 71 N, C. 85, (17 A. Rep. 1; I rs v. State, 97 Ga. 76, 99, (25 S. E. Rep. 252). Some courts have gone to the extent of roceiving evidence obtained by colpelling defendant to "'make tracks." State v. Graham 75 N. C. 256; Vralker v. State, 7 Tex. App. 265, (32 Am. Rep. 595). Other courts have held such evidence inadmissible. Stokes v. State, 5 Baxt. 619, (30 Am. Rep. 72); Day v. State 63 Ga. 667; Blackwell v. State, 67 Ga. 76, (44 Am. Rep, 7171; People v. Meade, 50 Mich. 228, (15 N7. r. Rep. 95). And see Jordan v. State, 32 Miss. 382. This court has gone no further than to sustain the right to require defendant to stand up in court for the purpose of identification. State v. Reasby, 100 Iowa, 231. . . . , . . As to the general constitutional ilmmlinity from unlawful searches and seizures, sec, also, Cooley, Constitutional Law (6th Ed.) 364, 370, 371n. None of the exceptions recog- nized cover such a case as we have before us. The search was for the mere purpose of securing evidence by ,an invasion of the private person of the defendant, and we think ther e is no con- sideration whatever which will justify it. With- out further elaboration or th e ultiplication of authorities, it is enough to say that the officers acted unlawfully in compelling defend- ant to submit to this examination, and all evidence with reference to information secured thereby should have been excluded on defendant's objection, . .* Trustees of Griswold College v. City of Davenport. 65 Iowa 653, 634-635 (1885). Mr. Justice Adc.ns (affirming an injunction against the collection of an assessment which was levied without notice or hearing): "The pDarties are agreed that property can- not be taken without due process of law, but they differ upon the question as to what con- stitutes due process of law in respect to the levy and collection of taxes. It is not contend- ed, of course, by any one that property cannot be taken for the non-payment of a tax without giving the property ow;ner an opportunity to be heard in court. In some cases, w-ere the right to life, litorty or property is dr wn in ques- tion, such opportunity is necessary, and if life, liberty or property Wore taken othlerwise, it would not be taken by due pocess of law. But the courts are not necessary for taxation* Their methods are too coabersome and expensive4 It seems to be agreed, therefore, that property taken for the non-payment of taxes is not taken without due process of law, if the tax-payer is afforded an opportunity to be heard in relation to the tax, though it be only before the officers clothed with power to assess, The rule in res- pect to due process of law, stated in a general way, is said to be this: that every one is entitled to the protection of 'Those fundamental principles of liberty and justice which lie at the basis of all our civil and political institu- 82 tions." Bit tihe plai-tiffs, having been afforded no opportunity to be heard, contend that they would be deprived of the guaran- teed protoction if the assessment in question should be upheld, and their property should be taken under it. While not admitting that property can properly be takren under a special assessment in any case, without notice to the property owner of the intended assess menit, they contena that it clearly cannot in some cases, and especially where the ssessment is made under a law o oordinance which, provides for an assessment according t.o bernefits or where substa:tially the same Dprincile is in- volved. In a case where, in makin. the ssessment, no opinion is to be forme d nor discretion exer- cised, it is manifest that there a-ould be less ground for contending tha.t a notice is necessary. In such case a hearing is less _ ortant to the property owrner. But, the plaintiffs contend that in the cases before us th'.ere is not only a ques- tion of benefits, but of coramparative benefits. Their position in this respect is based upon the provision of the ordinance under which the sewer was constructed and te!.e assessment made. The provision is expressed in these words: "Provided, that the council shall have the power to order that o art of t-he cost of the con- struction of ay articular sever shall be aid out of the general revenue of the city." Ve think that under this provision (assuiing that the provision did not have the effect to nullify the ordinance, about f.which there may be some doubt) the council was charged with the duty of dotermini g whether any part of the cost of con- structing theo sewer should be :a. id: out of the general revenue, and if so, what part, Upon what basis such -eterminat on should be made the ordinance does not shouw, but no one would contend thlat it should be done arbitraril,,. It follows, then, that it should be done in the exercise of judgment and discretion, , . ' 83 Burlin6ton C. R. & N. Ryi Co. v. Dey. 82 Iowa 312, 337-538 (1891). Mr. Chief Justice Beck (holding valid an order of the state railroad conmmissionors establish- ing joint through freight rates): "It is urged by the plaintiff's counsel that the statute is in conflict with the four- toonth amendment of the constitution of the United Statcj "in that, without due process of la.w, and without just compensation it takes away from the corporators ftnds iavested by them upon certain specified trusts, and applies those funds to uses to which the ownc -s inever consont- od T.e urdcrstand this object'ol, in effect, to be this: That by the statut thle plaintiff or its stockholders are doprivod of property without duc procoss of law, The power of the state is exorcised through dosignted officers, the r ilroad commissioners, by pr s ocodins specially provided to enforce the :hori ty of the state They are dosign:C.tod by the Code special proceedings, in which rights may be established, andremedies en.forced, and are pur- sued in mny cases. Code, sec. 2504, R:r.ilroad corporatio.s acquire lands to be occupied by their roads by special proceedings. Surely, the same character of proceedings may be invoked to enforce the porforiance by them of lawfully imposed duty. T:_e ppocoodings provide for:: notice to the railroad companics, and that they shall be heard in regard to the questions of joint rates. Acts, r5d Ge n. Assem., ch, 17 so. 4, It is a mistake to suppose that "'due process of law' is fou:,d only in law or chancery actions. Special procecdigs, applicable to specified subject-matter, and conformable to the rules requiring notice and the acquisition of juris- diction, and which affoct all persons alike, whose property or rights come within the lavwful scope of the proceedings, are prosecuted with "due process of law."' 6 Amcr. & Eng. Ency. Law, tit. Due ross of lw." T; statutes are designed to prevent railroad corporations from charging unr.o Lasonable rates fo the trnsporta- tion of proprty. Surely, it cannot be claimed that they are deprived of property and property rights by restrictions against unreasonable charges. In this connection cousel repeat object- ions founded upon what they term "renforced contractual relations" betw,-eer the railroad companiest VTe have shown that these joint through rates are often agreed upon by the railroad companies. They determaine, in the coimmon course of business, the division of charges, and wh1.ere and to whoh.o they shall be paid. Under the statute in question, it is made the duty of the railroad companies to establish joint through rates, If they fail to perform the duty, the railroad com1:-issioners will establish the rates as they should have done, and will do just as, they should have done and could have done)-prescribe the time and place of payment, and the division of charges. There will be no -,ore difficulty in obeying the requirements of the rcilroad corliission than in performing their ovn agree- monts for joint through rates, entered into in the course of their business. It is plain that the rights of the plaintiff ill not be invaded under this statute, :.nd it will suffer no oppression. . . ,' * * * * * * Chapter I Equality of Rights Scottish U. & N. Insurance Co. v. Herriott, 109 Iowa 606, 607-608i 612-614 (1899) Mio. Justice Deemer. Section 1333 of the Code of 1897 provides in substance: "That every insurance company or association organized or incorporated under the laws of any state or nation other than the United States shall, at the time of making its annual statement, as required by law, pay into the state treasury, as taxes, three and one-half per cent. of the gross amount of premiums received by it- for business done in this state during the preceding year. And that every insurance company incorporated under the laws of any state of the United States, other than the state of Ioiwa, shall pay a tax of two and one-half per cent. of the gross amount of premiums received by it for business done in this state during the preceding year. And that every other insurance company shall pay a tax of one per cen t of its gross premiums received after deducting the amount actually paid for losses and the amount of' prem- iums returned during the preceding year. And that said companies shall take duplicate receipts therefor, one of which shall be :iled with the auditor of state, and upon the filing of said receipt, and not till then, the auditor shall issue the annual certificate provided by law."' No such law was in existence prior to the meeting of the extra session of 'the general assembly which passed that Code. Plaintiff is a corpora- tion organized and doing business under the laws of the kingdom of Great Britain. Its stock is held by citizens and residents oi that country, and at the time of the passage of the act in question it had a general office at Hartford, in the state of Connecticut, and was, and had for tw7enty years prior thereto been, doing business in the state of Iowa, having complied with all the laws permitting it to do business in this state. Plaintiff failed to make payment of the tax imposed by this act at the time it filed its annual statement, andc in January of the year 1898 the auditor of state notified it of its deliquency, calling attention to the pro- visions of the act and requirin, payment of the amount imposed on or before January 31, 1898. He also notified it that, if the amount was not paid within the time mentioneL, action would be taken ior the collection of the tax by distress or suit, and that the company would be pre- cluded from doing business in the state after the date named, On the last day o- ticat month plaintiff paid the amount of e tax -to the treasurer under iprotest, taking his receipt therefor, and received authority frorm the audi- tor to do business in the state f:or the year 1898. This action is to recover the tax so paid. . . . . The clause of the state constitution prohi- biting- the grant of pr3vilees or immunities to any citizen or class of citizens not -;ran.ted to oohers has reference to citizens or classes of citizens residing; in the state, -or it is uni- formly hield that a iorcei n cororzationl has no absolute rigLht of recognition in other states, that it depends for its recognition and tae enforceme .-nt of its contracts upon t heir assent, and a state i. not prohibited .from iscriminating in the p-,rivileges it may grant to forein. cor- porations as a condition of their doi�nG business wi11in its limits. Philadelphia Fire Ass'n v. People of .1ew York, 119 U.S 110 '7 S-u. t. Rep. 108); Paul v. Vi rginia, 8 7all. 168; Pem- bina Consol. Silver .,ining & iilling Co. v. Pennsylvania, 12b U'.S l. 181T-8 Sup. Ct. Rep. 37). For reaso-. already iven, -the law is not local or special, and its operation is uniform throughout the state. :hethe:r the act is in contravention of t.ie article of t.ie consti- tution providing tiLat t.ae roperty of all corporations for pecuniary profit shall be subject to taxation the same as: tLat of indivi- duals depends upon wiethher -the ta. in question is a tax on pro)erty, a tax upon a, business or privilege, or a license tax or condition imposed as a prerequisite to the right oi foreign cor- porations to do business in th e state.o e are willing to concede that, if the tax. imposed by the act is simply a tax on pro-perty it is vul- nerable to tLie constituional provision just referred to, and perhaps interdicted by other provisions of both staue and federal constitutions. But if it is a tax on business, o- on the pri- vilege of doiig business in t.e state, or if it is simply a condition imposed by tie state as a prere uisite to to right of the corporat ion to do business in the state, then it is not 87 vulnerable to any constitutional provision. There is no recuirement of either the federal or state constitution that taxes on business or on privileges shall be uniform. Pembina Consol, Silver Mining & Milling Co. v. Tenn- sylvania, supraT It is p)permissible for a stlto I-o exact a license fee, and also impose a tax on the business done. Cooley Taxation (1st ed.), pp. 385, 386; People v. State Treasurer, 31 MJich. 6; People v. Thurber, 13 Ill. 554. Again, one who pays taxes on his stock in trade as property may also be subject to a tax on his occupation or business. It is no objectioni to either of these taxes that the corporation was alread y d oing business in the state when the act imposing theme went into elfect. In Doyle v. Insurance Co., 94 U.S. 535, it is held t L at a state has the :ij: A to revoke or recall a pemmission already ;ranted, and that a license to a forei gn corporation to enater a state does not involve a iermanent right to remain, No otiher aut .Lorities mned be cited to sustain the proposition th tii.ere is no consti- tutional objection to imposing a tax on business, althoujh that business may have been freely conducted before the adoption o t'e revenue measure. In re Ruth. 32 Iowa 250, 251-253 (1871). Sprior) Mir. Justice Beck. . . ThesiApro isions are amended by chapter 128 of the acts of the twelfth General Assembly, which provides that, upon .application being made for thie permission, a day shall be fixed for the hearing, a notice t:ereof be given for the time ano in the manner -:(escribed, and that any resident of the county may, on the day of final nearing, show cause agains.t -nue allowance of tiue permission, whVic1h "shall be refused unless the county judge siaul be fully satisfied that the requirements of tne law have in all respects been fully complied with; that t;e ap]plicant is a person of 'ood moral cnaracter; ano. tnat, taking into consideration the wants oi tue locality and the number of ermits already 'ranted, suchi permit would be necessary and proper ior tie accommoda- tion of the neighborhood." The application of appellant was rejected, as we gather from the abstract before us, on the ground that he was not a fit and proper person, as contemplated by the law, to receive the per- mission. No question is iade upon this point; counsel concede t.Lat appellant 'does not posess the standard of morals contemplated by the statute" But it is arjgued that the law which limits the granting of permissions of this kind to persons of good moral character is in conflict with the constitution of the State, and therefore void. The validity of no other provision of the statute is attacked. Counsel bases his argument upon article 1, section 1 of tile constitution, ichl declares that all men are equal and endowed with the right of acquiring, possessing and protecting property; and section 6 of the same article, which forbids the general assembly grantingl to any citizen or class of citizens, privileges or immunities, which upon the same terms shall not ecqually belong to all citizens." He argues that, as intoxicating licuors are property, the general assembly cannot restrict the dealing in them for lawful purposes to any class of citizens, as to citizens of good moral c iar a cter. The breadth and desi--n of tiese constitutionl provisions, to secure equality of all and the enjoyment of property by all, iff fully understood and as fully conced-ed. But the equality secured to the citizen cannot be exercised to the danger of the lives and pro-perty of others; neit--er can property be acquired, enjoyed and d.sposed of to the peril of the lives, health, happiness and property of others. The constitution does not interfere with the police power of the State to protect the people in their live , healta and proerty. Toe State is cloted. wi h tae pow r to prevent injury to these. See Constitution, art, 1, section 2. Gun powder, nitro-glycerine, and other explosive a ents, are property, yet the state may con-ine traffic in them to certain classes of persons, and confine tneir storage to certain localities. Certain poisons are property, but the sale of them may be restricted to certain persons, namely: those having sufficient intelli- gence to know when they ought to be used, and of sufficient character for prudence to give assurance that tnese deadly agents will not be carelessly administered. So intoxicating liquors are deemed, by the law, agents that are dangerous to the morals, health and lives of the people, though useful for proper purposes; their sale in the hands of men not of good character would be abused and. the people suffer therefrom, A pre- ventive restriction is thrown around. their sale, by permitting men of good moral character alone to deal in them. But counsel exclaim: "have not men of bad. moral character the same rights as men of good morals? U..doubtedly all are equal before the law as to the rights of property. But no one has the right to deal in these liquors, so far as his own interests are concerned; but as the wants of the people, for certain lawful purposes, demand that some should be allowed to sell them, the privilege is granted to certain persons, not because they have a right to sell the liqvuors, but because the wants of the people demand that the sale should be authorized to some extent, and they will be less likely to do injury than others who might be intrusted with the privilege. The sale of the liquors by all men of good morals is not permitted, and the law is not, there- fore intended, nor does it operate, to secure commerce in intoxicating liquors to all persons of that class, It has been found that the health and lives of the people demand that a few licensed persons be empowered to sell these liquors for lawful purposes, and that all others be forbidden to deal in them. Of those who are authorized, the law requires satisfactory proof of good moral character. In this respect, it differs not from all license laws which bestow privileges upon fit and proper persons making application t.Lerefor. These laws have always been sustained. The autihorities cited by counsel are not in conflict with the foregoin views. In our opinion, the provision of the statute in question is not in conflict witih the constitu- tion. The judg.ment of the circuit court is Affirmed. 90 Chapter II Police Power McGcuire v. The Chicago, B. & Q. RR. Co. 131 Iowa 340, 353-355 (1906) Mr. Justice Weaver: (Upholding a statute abolishing the fellow-servant rule on railroads, and denying effect to any contract restricting liability or the acceptance of any insurance benefits as a defence to personal injury actions brought against railroads byr their employees): ". . . Is the statute an unwarranted inter- ference With liberty of contract? The right of contract is not one of the rigIhts which are guaranteed in express words by thee Constitution, bt such protection exists as a necessary infer- ence from the express guaranty of property rights. This right, like all others possessed by the individual member of society, is hold subject to such reasonable restrictions and reLgulations as mnay be imposed for the general good. The power by which these limitations are imposed upon the liberty of the individual is commonly called the "police power", W ich is bhu anotiKer name for that portion of the sovereignty of thlie state not surrendered by the terms ol the national com- pact. The police power, as th.at term is commonly employed, may be paraphraseci as society's natural right oi self-defense, and its definition and limitation vary with the circullstance calling for its exercise. To embalm it in any fixed or rigid formula would be to destroy its value, for it would then be deprived of its indispensable q ality oi adaptation to chan ian conditions, and thus defeat the enis it vas irntended to pro- mote0 Words & Phrases, vol. 6, page , 424, and cases there cited, :.hile protectioni of public health and public morals and tLe promotion of social order are peculiarly within its province, these are but instances of its application, and do not limit its splere of' action. People v, Budd 117 N.Y. 1 (22 N.E. 670, 682, S LR.Ai. 559, TTi. St. Rep. 460); Barber v. Connolly, 113 U.S. 27 (5 Sup. Ct. 357, 28 L.Ed 923). The police power of the state is tne power to govern mnen and things witin the limit of its dominions. It compreends all those ener1 laws of inte:Lnal regulations necessary to secure peace, good order, health, ano. ir-osperity of the people, and the regulations and protection of property and property rights. State v. Harrington 68 Vt. 622 (35 Atl. 515, 34 L.R.A. 100); State v. Reynolds (Conn.), 58 Atl. 75b. It adapts itself to-the changing conditions of society, and makes it competent for. the state to devise, adopt and enforce any new regulatio-nl or restriction, not clearly forbidden by the Constitution, whlihh it believes to be expedient under the peculiar circumstances with which it is Sought to deal. The spirilt which pervades the police power is closely related to tLat whio is emiodiei in tihe common-law maxim, 'Sio utere tuo alienum non lae das. ' The liberty of the individual may always be restrairned where its unre late exer- cise becomes a source of dang.'er or injury to the society of wiich -b iat indiviaual is a member. "As soon as any part of a person's conduct affects prejuicially the interests of otners, society has jurisdiction over ite'" Hill on Liberty, chapter 4. . . Beeks v. Dickinson County. 131 Iowa 244, 247-250 (1906) Mr. Justice Sherwin (holdin, that a county is not liable for negligence of Ihealth officers in the enforcement of quarantine r-ejulations): " o . The remaining question is whether the members of tihe local board of healbin are individually liable for the loss of the plain- iffs croe satute makes it the duty of health officers to quarantinue a oainst 'all infectious or corbtaioudesdises dangerous to the public1 and it cannot well be questioned that tne deiendfants were actinig within the scope of t c i r duty as sicn offiee es, and that in establishin: the quarantine they were acting in a auasi judicial character. They were vested with the power to determine whethPer an infectious or contagious disease existed in tihu appellant's family, and if found to exist -their duty u der the statute required them to take ,e proper steps to prevent its spread, anic had they negi- leoted to dc o o they wou L-cad have bee n culpable in a hign deLcgree They were i.erefore acting: jueicially, and it is the general ru.le thaut officers so acting ar-e not liable for injuries .ihicl may result from such acits ,erfo:imed in. the honest exercise of t~eir ju.dgeni-b, :owedver erroneous or mistaken the action may be, provided there be no malice or wron meotive p-rsent. haymond r. Fish, 51 Conn., 80, (50 Ami. Rep,, 3); 92 Lowe v. Conroy, 120 1is., 151, (97 N.I. 942, 66 L.R.A. 907); see, also, Packard v. Voltz, supra. In some cases an exception to t~his general rule has been recognized, and the individual officers have been held liable because of the maxim that where there is a wrong there is a remedy. See Lowe v. Conroy, supraa and cases cited therein, and. oCord v.High, 24 I owa, J6, whiere Judge Dillon in a concurring opinion . recognizes and applies -he rule. e are of opinion, however, that where the public health is involved, this rule should not be applied, notwithstanding the fact that court s of great abiitity have so held. It is the modern tendency of ju.dicial opinion to hold that the >ublic i :ealth is the highest law of the land and 'whenever a police regul_a- tion is reasonably demonstrated to be a promoter of public health all constitutionally guarantied rights must give way to be sacrificed without compensation to tile owner." 2 Tiedeman on State and Federal Control, section 169. Nor does this doctrine necessarily conflict with tie maxirm to whiich we iave reierred. As we have already said, this board of health was a creation of the statute and its paramount duty was to protect the public h ealth; its duty, then, was to the public and not to any individual member thereof, except to act honestly and with- out desig;n -io injure him. If a iealth officer fails to do his duty no individiual may complain, for the duty is public and the oi-iicer is not chlarged with any individual u ty to ajny particu- lar person. Cooley on Torts, 82. Iit tLere be no liability for an omission of Public duty, it would seem -;o follow without qustion that an erroneous performance shou6lo. nob subject the officer to personal liability. It may, it- is true, cause an injury to the indiividual, but i is not a wron'g because the owicer. owe tne indivi- dual no duty beyond what we have alreay stated. Cooley on Torts, 379, 380. In volume 5 of his work on Negligence, Judge Thompson says: "So a board of health may establish quaranoine re subject of taxation, which is a matter under the authority of the State. oreover, the City derived from the State alone its power to grant ra license to the Com rny. The right toaoperate the railwray in the streets is a franchise obtained through powcr given to the City by the State, but the State reserved the power to detormine the question of the exormption of the Company from taxation and to proscribe what burdens should be imposed upon it for tihe public good in the onjoyment of its franchise. Manifest- ly, such power of the State would exist, if the 115 riht to occupy the streets with tracks were granted to thie Coipany directly by an Act of the Legislature of the State; and the case is not changed by the fact that the franchise was granted by the City. There is noth inr in the ordinance of the City Council which takes away the power of the State and the City to imrose additional taxes on the property of the Company, or which indicates an intent that no further or different tax should be subsequently imposed on its property. Dolaware R. R. Tax Case, 85 U. S. 18 all. 206, 227 (21:888, 895; Union Pass. R. Co. . PhilaJdef!1a_, 101 U. S. 528, 536 (25: 912, 913); Com. v. Easton Bank,, 10 Pa. 451. No cuestion can arise as to the i,pairmo nt of the obligation of a contract, when the Coimpany accepted all of its corporate powers subjectto the reserved power of the State to modify its charter and to i.pose additional burdens upon e-i7 the enC;joyment Jof its franchisec. Under the Act of March 15, 1884, it was made a condition of the enjoyment of its franchise by the Copany, that, when the City should determine thatt he streets, should be pcaved, the Company should bear a certain portion of the cost thereof; and any prior contract bet-een the Company and the City in regard to paving was subject to the provisions of section 1090 of the Code. There was nothing in the ordinance of December 12, 188, which bound or could bind the City not to exercise its st tuto-ry authority to impose other conditions uowon the exercise of the rights of the Company. Our conclusion, therefore, is that there was no contract betw-:ecn the Company and the State or the City, the oblio of which was impaired by the laying of the tax in question. Judamet ffirmed ." Note: - The opinions of the Supreme Court of Iowa upon the above case appear in 78 IoTa 367 (1889) and 742 (1888). The opinion upon rehearing is the former and the original opinion is the latter. 116 b. Change of Law affecting Remedy Tilton v. Swift & Co. 40 Iowa 78, 79-81 (1874). Mr. Justice Beck. -- The following provisions are found in the Code, which took effect Septem- ber 1, 1873: "Sec. 185. In all judicial proceedings in any of the courts of this State, where a jury trial has been coi menced in any case, during any term of court, and where such jury may agree upon a verdict, but not until aftcr the time for holding court in some other county in the same district, and iwhere the jury has agreed upon a verdictand reported the same after the open- ing of court in another county, and judgment has been rendered thereon, then and in that case such judgments hall not be deemed invalid by rc son of ,the tiioe of receiving such verdict, and the rendition of such judgment. !'Sec. 186. in cases provided for in the preceding section, when the verdict has been so received, and judgment has not been rendered thereon, as provided for in said sectioh, then the time of the comiiing in of such verdict, shall be no legal objection to the rendition of judg- ment thoreon at the next ter-, of tie court in the county w:"here such trial was had, but judgment shall be rendered thereon: providod, there be no other good and sufficient re.son lwhy such judg- mr;ent shall not then be rendered; then tlhe time of the report of the verdict and the provisions of this section sha a in all respects have a retrospective effect Land opeurat ion." Two questions arising upon those provisions must be considercd in order to dotermine their effect and applicability in this case. I. Are tey auut.orized by the constitution so far as they con,emplete retrospective opera- tion? 117 Retrospectivo laws are not necessarily unconstitutional, and those which cure defects in acts done, and authorize the exorcise of powers which opcrate retrospectively, are sustained by the courts, if the lc islatur possessed authority to confer the power, and the act would have been valid, under a prior cnactment, and vested rights of property are not thereby disturbed. Mc iillan v. Boyles, 6 Iowa, 304; Bennett v, Fisher, 26 Iowa, 497; State v. Souires, Id., 340; Boston et al. v. Cummis_, 16 Gee., 102; Charles iRiver Bridg Co.,v._ ~arren Bridge Co., 11 Peters, 420; Yatson v. Mcrcer, 8 Pot., 88; Satterloov. Matthewson, 2 Pet., 380; Beach v. W alker, 6 Conn., 190; Booth v. Booth, 7 Conn., 350; Under-wood v. Lilly, 10 Serg. & R. 97; wilkinson v. Leland, 2 Pet., 627; enges v. ertman, 1 Pa. St. 218; Chestnut v. Shane, 16 Ohio, 599; Barnett v. Barnett, 15 Scrg, & R., 72; Tate v. Stooltzfoos, 16 Scrg. & R., 35. Now, if it be admitted that the statute under consideration authorizes the court to exercise the power of rendering a judgment upon a verdict before found, so as to cure the defect in the proceeding resulting from the fact that the verdict was not returned in time to authorize a judgment under the rules of law then in force, and, in these respects, operates retrospectively, it is not unconstitutional, for the legislature could, in the first instance, have clothed the court wTith the authority con- ferred by the provisions under consideration. Neither are vested rights of property disturbed, for none have been gained under the defect in the administration of the law intended to be cured. A citizen has no vested rights in a particular course of practice in the courts, nor to a particular remedy. CGomonwealth v. Co immissioners, 6 Peck, 501., Re-medies are within the control of the legis- lature, subject to the restriction that the obli- gations of contracts may not be impaired, and all legal remedy for the enforcement of rights under a contract be not taken away. Sturges v. Cronm- 424. 118 The legislature may provide a new or addi- tional remedy for a right already existing, which would be lost if no remedy were provided. HIopev. Johnson, 2 Serg., 123. And retrospective lawrs, which affect pending suits, giving a new re~medy, modifying an existing one, or removing an iimpediment in the way of legal proceeding, are not unconstitutional. Schenl~y v. Comon- .vealth, 36 Pa. St., 29. Legislation, operating retrospectively, to render binding and offective contracts before invalid, is not in conflict with the constitu- tion. It does not impair the obligation of contracts, nor, -s bets. eon the parties thereto, disturb vested rights. Brinton v. Seevers, 12 Iow a, 389; A~nirows v. Russell, 7 Blackf., 474; Welch v. Wdsorth,. 30 Conn., 149; The State v. Norwood, 12 1d., 195; Thompson v. Morgan 6 Minn., 292; iicillen v. Boles, 6 Iova, 304; Kunkle v. Franklin, 15 Minn., 127; Comer v. Folsom, Id., 219; Wilson v. Brucknan, Id., 441; Winchester v. Corinna, 55 Me. 9; Grim v. WVeissenberg, 57 i4. St. 43; Bass v. Columbus, 30 Geo., 845; WT.,,,.e ise, 25 Ind., 1; Dentzel v. Valdie, 30 Cal., 138; Selsbr v. Redlon, 19 Wis., 17; Davis v. Ballard, 1 J. J. M arsh, 563; Real v. Nason, 2 Shop., 340; Wal- polo v. Elliott, 18 Ind., 258; UndTlerood v. Lillr, 10 S. & R. 97. Applying the principles above announced which are, in our opinion, amply supported by authority, to the sections of the Code above quoted, we conclude they are not in conflict with the constitution. . . c. Retroactive Law s and Legalizing Acts Ross v. The Board of Supervisors of Tright Countu 128 Iowa 427, 431-433 (1905). IMr. Justice Weaver (upholding the Validity of a drainago assessmont under a law w;hich was defec- tive as originally passed but which was amended so as to cure the defect during the pendncy of the assessment proceedings here in question): 119 " . . . In other words, the methods of the statute were constitutional and valid up to the point where the report of the comissioners appointed to classify the benefited lands and apportion thereto the cost of the improvement was returned to the board, but the failure to provide for notice to all the owvners of proper- tv thus ai'fectcd before confirmation of such r port rcndered ineffectual and void any attempt to make and enforce a valid assessment. The proceedings relating to the ditch in controversy roeached just this state of advancement before the amend:ment to the statute found in chapter 67, pa(,ge 59, La-ws 30th General Assembly, was enacted. That amlendment leaves the statute unchanged as to all the proceedings in such cseso from the filing of the petition up to the return of report made by the commiissioners a~pointed to classify the benefited lands and apportion the expenses, and provides that when this stage is reached a time shall be fixed for hearing objections thereto, and notice thereof shall be served personally upon residents and upon non-rcsidents by publication, and upon such hearing the board is erimpowerced to determiine all objections to t.he assessment, and may increase, diminish, annul, ovr affirm the apportionments made in the comnissioners' roport, or any part thereof, as shall be found just and equitable. By section 2 of the amending act this almendment was made to apply to all proceedings then pending before the boards of supervisors for the loca- tion and construction of drains. Was it coirTretent for the Legislature to thus provide and authorize the defendants, with other boards of supervisors having similar proceedings in hand, to cause proper notice to be served, and proceed thereon to make an apportionment and assessment of the cost of the ditch? In our judg- meont, this question must be answered in the affirmative. The Constitution of Iowa does not forbid the enactment of retroactive laws, and this court has frequently upheld the validity of such statutes. Land Co. v. So er, 39 Iowa, 112; Tilton v. Swift, 40 lowa, 78; IMcilillan v. Co. Jnudg, 6 Iowa, 391; Huff v. Cook, 44 Iowa, 639; Sully v. Kuehl, 30 Iowa, 275; State v. Squirs, 26 Iowa, 340; Galusha v, _Wendt 114 Iowa, 597; 120 avings & L. Ass'n v. Heidt, 107 Iowa, 297; Windsor v. Des Moines, 110 Iowa, 175; Ferry v. Ca rpbell, 110 Iowa, 290; Fair v. Buss, 117 Iowa, 164; Clinton v. Walliker, 98 Iowa, 655. That the Legislature may by aendmeent cure a sonstitutional defect in a statute the main purpose of which is within the scope of legislative power and give such amendment retroactive effect upon cases already begun and pending is expressly held by this court in Ferry v. Campbell surra. In that case proceedings had been begun to enforce a collat- eral inheritance tax under a law which was found to be unconstitutional for want of pro- vision for notice to 1arties in interest. Pending the proceedings, the statute was amend- ed providing for notice in such cases and mak- ing the amendent applicable to cases then undetermined. Acts 27th General Assembly, page 27, chapter 37, section 2. This we found to be a valid exercise of legislative power, so far at least as it related to personal estate; and unless we propose to overrule that prece- dent--which we are not prepared to do--we see no way to avoid giving like effect to the amendment to the drainage act with which we are now dealing, The same principle is recog- nized and upheld in several of the Iowa cases above cited. A-ppellant's claim that the amendatory act was not intended to have a curative effect upon proceedings then pending is clearly opposed to the language employed therein. It was the apparently studied purpose of the Legislature to remove the objection based upon the failure of the law to provide for notice to the land- owners, and to give legal force and effect to proceedings then pending and liable to be rendered nugatory if such defect was not cured. hiile the term "legalized" is not expressly applied to the preliminary proceedings already had, section 2 of the amendmhent hereinbefore quoted would be idle and meaningless if they are not to be considered valid and sufficient to sustain the assessment made pursuant to the 121 notice for which the act provides. The princi- ple which we here apply was affirmed by us in Butts v. Monona County, 100 Iowa, 74. Perhaps no case can be found more nearly in point than p .encer v. Merchant, 125 UTJ. S. 345 (8 Sup. Ct. 921, 31 L. Ed. 76-5). In that case, under a statute authorizing the same, a city ordered a work of local improvement to be made. The work was done and the tax levied. After the levy had been ulade, and some of the property owners had paid the tax, other owners resisted payment, and were successful in having the proceedings adjudged void because the statute failed to provide for any notice, and was therefore unconstitutional. Stuart v. Palmer, 74 1~ Y. 183 (30 A. Rep. 2897. After this adjudication was had, the Legislature passed another act authorizing a relevy of such tax after due notice to the owners who had refused to pay their original apportionment. The validity of this legislation was affirmed by the Court of Apeals of New York--S encer v. Merchant, 100 N. Y. 585 (3 N. E. 682), and reaffirmed by the Supreme Court of the Un ited States, as above cited. The arguments there used against the validity of the later statute followed the same lines pursued by counsel in the case at bar, and were held unsomnd by the highest court of New York and of the nation. We do not stop to quote from these opinions, but those who care to pursue the inquiry will find the question there fully and exhaustively considered.. . Hester v. Groneweg & Schoentgen Co. 182 Iowa 855, 840-842 (1918). A county deeded swamp land to one McDonald, at a time when it had no title to the land-- the title being -liolly in the state of Iowa. In the following year, the grantee mortgaged the property. Later, the mortgage was fore- closed, the land sold, and a sheriff's deed issued to the purchaser. Of this chain of title, no grantee was ever in possession of the land except McDonald, Fifteen years later, the leg- islature legalized the deed from the county to McDonald, and declared that said deed should 122 convey, not only the interest of the county, but of the state of Iowa as well It thus appears that in this act the state first parted with its title. In the meantime, vested rights had attached because of the following facts, to vit: In the year follow- ing the issuance of the sheriff's deed, the county (unlawfully, as the title still rested in the state), sold the said land for taxes, and a tax deed was issued to one Loose. Loose took immediate possession, and he and his grantees continued in exclusive, open, and notorious possession at all time there- after, under claim of right and under the color of title afforded by said void tax deed. This adverse possession was of more than ten years' duration when the legislature legalized the deed to 1MicDonald. TMr. Chief Justice Gaynor . "Since the execution of the tax deed to Loose, the land has been in the continuous, open, adverse, and notorious possession of Loose's grantees. Loose's grantees have not only been in the open possession, but claim the right to possess under the Loose tax deed. The defendant never has been in possession, nor have any of his grantors since McDonald. Assuming, for the purposes of this case, that the legalizing act did not validate the title conveyed under the Loose tax deed, and .assuming that it did validate the title in Mrs. McDonald under her deed from the county, and that, as a legal sequence, it follows that it validated the mortgage given by Mrs. MicDonald, under which these defendants claim, yet it is apparent from this record that the grantees of Loose under the tax deed have been in adverse possession of this land, claiming a right to take under this tax deed,--void though it may be,--ever since its execution, in 1900. We are met at this point by the suggestion that an occupant cannot obtain title by adverse possession against the state; that, inasmuch as the title rested in the state at the time these grantees of Loose were in possession, the statute of limitations did not run against the 123 state, and no length of possession would give themf title as against the state. We answer this by ayng th6-at the pilaintiff is not urging adverse p.ossession as a basis of title against the state, but against those claiming under a deed executed by Fremiont County in 1895, legalized by the state and made valid as a conveyance of the state's title in the land as of that date. This curative act was retroactive, nd - lade the deed just as efficient to convey title from the state to Mrs. McDonald as thougL the state had joined in the deed at the tiIme of its execution. This legalizing act of the legislature cannot be construed into an instrtuecnt passing title as of the date of the passage of the act, but rather should be construed as retroactive in its effect, and legalizing and making valid as a conveyance of the state's interests in the land, as of the date of the execution of the deed from Fremont County to lLrs. McDonald. This legal- izing act, on its face, purports to make valid the deed from Fremont County to Mrs. McDonald, and make the instrument an instrument conveying whatever title the stote had in the land, as of the date of the making of the deed. It is under this deed that the defendants are claim- ing, and it is ag:ainst this deed that adverse possession is urged. We my concede that the defendants, through the foreclosure of the mortgage executed by Mrs. McDonald, supple- mented by this legalizing act, acquired title; yet that title is traceable to the deed from the county to Mirs. Donald, under which she assumed aut ority to make the mortgage. It is this title that has been lost to these defend- ants, through the adverse possession of this plaintiff, for more than the statutory period, under a claim of right and color of title. Though it may be that the tax deed was void, yet a void deed my give color of title, rest- ing upon which the adverse possession in good faith for the statutory period may ripen into title. . . ." Note: The statement of facts above is taken from the syllabus. ** *** 124- Chapter IVI (continued) The Obligation of Contracts Section 2. What Rights may niot be IMpaired Ferry v. Ca-mpbell 110 Iowa 290, 500-301 (1900). Mr. Justice Deemer (holding that an amendment to ie inheritance tax laws provi ding for notice and a'.erin, of appraiseuent was consti tutional and applicable in a case which was .endig when the aimendmeient was passed an i wich an a-p-raise- ien-t h .ad been m ade withouut notice or hearing prior to t;.e Passin of thie amendment) ' .*. . Again, it is said that a judguent is a contract, and that t;he obligation tbereof can no more be disturbed by subsequent legisla- tion than the obligation of a mutual agreement. A judgment is not of itself a contract in a. constitutional sense. If it be based on contract, the obligation tereof cannot be iipaired by subsequent lerislation, but if upon tort or other cause of action not entitled to protection as a contract, then tb.e judgilent ra7T be impaired with- out violating the constitutional inh ibition. Sprott v. Reid 3 G. Greene, 45; GaVrison v. City of New York, 21 h'-all. 196 (22 L. Ed. 612); Freeland v. Williams, 131 U. S. 405 (9 Sup Ct. Rep. 763, 33 L. Ed, 193); Louisiana v. layor, etc., of City of Jew Orleans 109 U. . 285 (3 Si . Ct. Rep. 211, 27 L. Ed. 936). iMoreover, while tihe judgment in this case was conclusive and binding between the partioes from t he time it was rendered, if not superseded as provided by law, yet, in view of the appeal, it was subject to modification or reversal so long as this court bad jurisdiction of the case. Surely, this court is not estopped by any constitutional provisio_ from rendering any judgmenit it may see fit on appeal, and we may, in so doing, especially in equity cases, consider the law as it exists a.t the t:i.:e we are called upon to act. This i.s elementary law, sustained by some oi Gthe authorities already cited. VWhile it is true that the original act was unconstitu- tional because it did not provide for notice, that defect has now been cured, and we must decide the case on appeal in the light of the law 125 as it now exists. That the case was .eard in the trial court on demurrer, and was presented to us on assi--nuent of error, does not qiuelify this rule. The facts are i..tted, and it is si~ply question of' la to be deteinied by t.is court o the reed st ate. ,t t of t"e facts. ThIe i iLand.C.o:. .y Ccase was tried on demurrer, and yet the decision was rend, er ed under the law as it exi sted t the t:ie t e ci0ase was hea"& rd in tb.is court. o new f ct is introduced. .e are cons.trained .to hold ' ,1ha t, in KI view of the subsequ.ent 1 _eislation-:, te jud - of t:.e trial court should be reversed, and the cause remIInded for further roceedils in arnonyI with this opi,:ion. But it should not be understood from this holdi, that any of the roetyty is subject to the tax. That qulstion uSt be de- ter ined from thle facts as shown -oa a trial on tsLe merits. It I y be that no tax. can be collected from the real estate. 0n that point we express no opiAion. A, d it may furthel,: er th-t .t.e _erson a estte was distributed, in wh.ole or in i-art, at the time the amendEtory act was passed, and that no tax s.ould be imposed on the rpersonal property. Thct question is left open for further consideration. The parties will each pay one-half the costs of this a peal.-- REE2RSEI..D. GRIIcTER, C. J., not sitting." St. John v. Th Iowa Business Ments Buildin and Loan Ass'n. 1l36 Iowa 448, 45z4-456 (1907). Mr, Justice Deemer . . ' "By the express provision of section 10 of the act now before us, it was to apply to all buildinu and loan associations then doing business in the State ancd to c;mersor who had theretofore borrovwed of sueta cornoration; so that .the act i ternms uiquestionably has applica- tion to plaintiffs' contract. By the terms there- of it is provided that etIbers who have tiihe~eto- fore borrowed shall hIave the rate of interest reduced, so that the amount charged whether as 126 premium or interest shall be the same to all. Th-is, of course, had the effect of chaning and iPairin plaitif's con.tract with defend- ant; cadc the primary questi.on is: Is the act violative of the const itutional provisi.on pro- hibtin legislative impairint o the obligations of a contract? It wiil be noted that the act itself does not a-Ltemipt to can : aje the contracts of members, but it does provide tat, if the asociation failed to coply t.erewith on or before July 15, 1900, its authority to do busi- i.! ness should cease, and its affairs should be wound up, and settle rts ,ade with. all ebers according to the provisions of the act. Defend- an.t then had the option of com-plvin;g with the law and adjusting its .outstanding, contr-cts on the basis outlin.ed in the act, or of oing out of business and settlulng with its members up)on the basis fixed in section 7 of the act It had no constitutional or other rirt to continue in. business indefinitely o-:- for any other time than the Legislature might see fit to p-ermit Thi s is a f�undaienital ?rinciple o- cor orate law under the reserved power now generally given to the Le lslature. Bish0o) v. Brainerd, 28 Conn. 289; In re Brooklyn R. R., 72 i. Y. 245 (75 IT. Y. 5 3 5 81 . Y. 69) . Of course, the relation between the corporation and its stockholders cannot be chang- ed or disturbed against their will. li that the Legislatur:e uay do in this reospct is to grant the powTer, and tb . it is for tle corporation to accept or not as it pleases-. enosha Co. v,,Mrsh, 17 Wis. 13. Whatever night be said as to the rights of the parties had the defendant not coiplied with the provisions of the act now before us, it did amend its articles and comply with the terms of the new law, and, jhavi_ done so, it is bound thereby to all its imembers who seek to take advantage thereof. Defendant had two courses open to it: One to quit doilna business and settle up its affairs, and the other to conply with the lavw, amend its articles, and give to its members the benef it of the new lavw. It chose the latter course, and, havin done so, it is in no position to say that the act under which it did these things is unconstitutional 127 and void. Durfee v. Old Colony R. R., S Allen (Mass.) 230; Greenwood v. Railroad Co., 105 Us S. 13 (26 L. Ed. 961); Union Pacific R. R. V. U. S., 99 U. S. 700 (2d5 Ew. %6);Edworthy v. Ass'n 114 Iowa, 220; and B ris v.. Assn, 114 Iowa, 232, are iot in poin.t on this proposi- tion; for in neither case did t he de fen.dant comPTly or atte mpt to cop-l'y wvit the ia.rlendatory act. In other words, ther.e w-e as no acceepta.ce thereof by t.he -parties in interest. Deofenant insists, lhowever, thLat there is no evide-ce t"lt plaintiffs ever assented to t!he new articles of' incorporation or bthe aendment to the old; and it is true that no express assent is shown,v, save as plaintiffs may be held to have assented by the bringin, of this suit. But proof of express acceptance is not necessary, Ilaintiffs ex-pressed nio dissent, but allowed the associa- tion to go ahead und cr its amended articles incurring additional ilities, ain t.eir. p Cemiumls, interest, and dues, ad tak-,in no steps to enforce their ori inal contract. II der suc circumstances, there was. eith.er an implied accept- ance of plaintiffs are estopped froii denying an acceptance of the provisions of the new or amend- ed articles, Cbubb v. Upton, 95 U. S. 665 (24 L. Ed. 5235); Dnbury R. Co. v. Wilson, 22 Conn. ,35; Sparrow v. Railrad, 7 Ind. 369. loreover, as tile aiendment in this case was beneficia!l to the members, assent thereto will be presumed. Comwimonwealth v. Cullen, 13 P. 103 (53 iam. Dec. 450); Ban.or R. R. v. Smith, 47 .e, 34. !,Te are constrained to hold that the act in question, because of defendant's conclusion_. to take aedvan- tage thereof by filing its amende darticles and continuing; in business, became bindin upon the defendant, and that plaintiffs are presumed to have accepted it or are estopped fromi denyina thot they did, and that ti.e case is governed Iby chapter 69, Acts 28th General Assembly, and the defendant's amended articles. These provide, in substance, that the rate of interest shall not exceed the sum of eight -per cent, p-er annr um, payments to be. credit- ed on anniversary days and pay-ments on stock to be treea-ted as payments upon the mlortage, . . . 128 Davis v. Bronson 6 Iowa 410, 432-4.35 (1858), Mr. Justice Stockton (Ioldi-g, um e--force: ,,le in Iowa an Illinois contr.ct o sl - o-f ii.or which contempnlated that tie liquor would be sold in Iowa in cotravention of law): " . . . The State of Iowa, as an i:.deendent coimiunity, may judge and determine forl herself, hovw far the obligaoton of comity to a neighb. boring St ate renders it becomi1: in her to give effect to contracts made withiL such nei(,boring Stato, and valid there, but wbich: may be -projudicial to her iterests, and entered into with a view to the violation of her laws. This comnit is, in all cases, a volun.tary con.cessio, ol thLe part of the Stmate by whom it is offered, and is incad- missible ,wh.en contrary to its poicy or prmejiudic- ial to its interests, rBa.:c Auogusta v. TEarle, 13 Peter s, 5S9. The State, in the exercise of her rights, and in defense of ier policy and interests, has chosen to declare th:t no action of any h-ind shall be mn.iai ned in the courts of the State, for the value of any into;:icating liquor sold in any other State, with intent to enable any person to violate the provisions of the act for the suppression of intemperance. The pli.,intiff, by his demurrer, admits that the liquors were sold to the defendant, to enable him -to violIte this lar of the State. It is claim- ed b\ " _ %.t T+""he law ed by i, however, that tU.is provision of the law is uncon.stitutional and void, as opert '. to impair the obligation of contracts. T e law w.as not intended to a-ffect th.eoblig;-ti'on of con-tracts, in the sense in whic) these words arce used in the constitution. This law was in force when the contract was made, and can, therefo-ce in no legal sense, be said to im .ir its obli-'tion. Lavws made subsequent to the foraktion of a con- tract, may certainly operate so as to impair its obliga-tion. But laws made prior to th.e formation of the contract cannot do so, because all exist- ing laws enter into contracts whien made tunder 129 them, and define and deotermine that contract. 2 Parsons on Contr., 537. The contract was so far eade, in this i.stance, with reference to the Law, that it ,p:ears fromi t."e pleadinGs that it was ente:.ed int o i)y th rties with a view to a violation of Jte lawW, which it is now arued imoired its oblition. Ie thinki the demurrer was oroely. over- ruled, and the jude cint of the District Court will be affirmed. JLUDG- T F >i DD." -0 P A R T III SELCIAL iPROVISTI ii T-IE IOT COOSL TITUTION Chapter XVII State Debts Grout v. Kendall. 195 Iowa 467, 469-470, 471-472, 476-477 (192~) Mr. Ju.stice Evans (holi:dl constitutional the Soldiers' Bonus Act): " o The er mp:asis of apl.ellant's arument is put upon. the first five sections of Article 7 of the Constitution, and especiaily : or. Sections 1 and 5. To tKese sectios w.e hall, theref ore , devote the principal part of our dis- cussion herein. For conveaience of reference, ire here set forth such sections: "Article 7.-S-tate Lebts. "'Section . The ciredit of tihe state snail not, in an. manner, be iven or loaned to, or in aid of, any individual, associatiof, or corporation; and the state snall never assu-me, or become respoilsiole for the debts or liabi.ities of any individual, association, or cororation, unless incurred in time oi war for the benefit o01 the state. "Sec. 2. The state may contract debts to supply casual deficits or failures in revenues; or to meet expenses not oth erise provided for; but tJ.e ag-regate amount of sucih debts, irect and contingent, whe er contracted by virtue of one or more acts of the general assembly, or at d1ifferent period.s of time, shall never exceed the sum of two hundred ana fifty thousand dol- lars; and the money arising from thU creation of such debts shall be applied to ti;ie purpose for which it was obtained o r o repay ;the ebts to contractec, and. to no othler p--ose whatsoever. "Sec. 3. All losses to the permanent school, or univerity funo. of this state which shall have been occasioned by the defalcation, mnismanag. ement, or iraud of the agentu b:r officers controlling and managin the same, shall be aidited by the pro- per authorities of the state. The amount audited shall be a permanent funded debt asainst the state, in favor of the r-epect-i e fund sustaining the loss, upon which not less t.an six per cent annual interest shall be paid. TIhe iamount of liability so crea.tcd ial.l not be counted as a part of t~ e indebtedness aut.iorized by thle second section of this article. "Sec. 4, In additio. ~to the above limited power to contract debts, tl ie state La contract de:ts to repel invasion, supress insurirection, or de fend the state in w.a rG; but the money aris.in from- the debts so contracted shall be applied I to the purpose for w.ii:n. it was raised, or to repay such debts, an. to no other purpose wxaat ever. "Seco 5. Except -e debts hereinbefore specified in this article, no debt shall be he:reater coni-tracted by,- or01 on beiAl of this state, un-less sucO,. deb s.ali be ai orized by some law fobrt: : ome sin:lte wo:0. or object, to be dis inctiy peicifie t..erin; an. such Law shall i;pose an d proVide ior thie co..lectioiC of a diArecb annual '.ta-, euiticien.t to p,. y te interest o:- such debt, as it falls due, an aso to pay and dischlar-ge the . arincipal of ucie debt, within t;we.ty years from ie time ofL bie coracti Liin5 thereo; but nio such law shall "ta.e effect until at a general election it. shall iave been sub- mituted to the people, and have received a majority of all the votes cast for and a :ainst it at such election; and all money raised by autiority of such law shall be published in at least one lnewspaper in each co unty, if one is published tl _L rein, tLouhout t.e1 stae, Lo thGi ree months precedin- tne election at w.ich it is submitted to thie, people-. . " S. . I. Does th.e act in question violate Section i of Article 7? \,e quote it again: SSec. i. The credit of t e state shall not, in any manner, be g;iven or loaned to, or in aid o, any individual, association, or cor .oration :; and the state shall never: assume, or become responsible for rhe debts or liabili- ties of any individual, association, or corpora- tion, unless incurred in time of war -or the benefit of the state 132 The construction which appellant puts upon this section is that it ,proibits t.re creation of any indebtedness by the .-tate, i:iardess of its public -urpose or mo:a-_ obli,jation, if it operates 'in aid. o any. indiviCual, associa- tion, or borIpoiraio . The arg-ument is that by the uise of bones e state will create an indebtedness, anld -that tLe - r011pose 0f suc. indebtedness is to aid the pai-ticu.lar indivi- duals who e rdered service in the late- ar. It is illortant, therefore, that we discover and define clearly the field which is covere _by this section and by t-e prohibition tliereof. nhe section d;oec not, in term s, purpor- to deal with the creation of primary indebtecdness by the state ior any puipose Whatsoeer. The prohibition is that the state shall not lend its credit to any other being whatever, and that it shall "'never assure' the debbs or liabilities of any other beiig whatsoever. Omitting now all reference to the closing proviso, is there a distinction to be observed botween a loan of credit and the opower oi tne constituted autior i- ties of the state to create a primary indebtedness to subserve some public puriose or in respo-nse to sonme moral obligation? This section is not qualified in terms by any subsequent section. When we define its field, its prohibition is supremrie therein and irrevocable, No -ublic purpose can be meritorious enough, and no obliga- tion of equity appealing enough, to override it, . " ". . . :e have not overlooked appellant's contention thathe proposed issue of bonds by the state for the pur ose of paying the bonue is a loa A of credit; and thaLt, t.hereior~ , it comes within the terms of Section 1, and is ouside of the permission of Section 5, The argment is that the issue of a bond is an extension of credit. A bond is a credit. It is ur ed that, when the state orrows money upon its bonds for the purpose of payin: tie si to the benefici- aries of the act, it loans its credit to t; sunh beneficiary; because, without the credit of the state, tle beneficiary could not obtain the money at all. The arument is not sounc. The beleficiary is not a debtor at all. He sustains no relation of liability to the bondholder, either primary or secondary. The state reco.nizes the beneficiary as in the nature of a creditor, to whom the state proposes to pay its recognized obli ation. The 133 state becomes debtor to the bo.dholder under a pri rm ary liability, and not a seconary one. ither le-islator nor voter ib b-uiled by any dolus ion that th bc.dcl will be aid. by someo re Cle a asa .rimary debtor. In voin b aro-pi- ationL, both leisla.to.r and voter fr ankl face the constitutional necessity of an imi cdiate tax levy, to mee t the obli ation th.s assurmed. This necessity is the ra,cti cal sa:_ei-iuard oi tihe Constitution, 0 comi1pel leis.slatoi a voer to a thout-iul cooisideration of t.ie opodieCLc of the proposed a ro0priation To o more efiicielnt safe;uLlard could well be devised wi-thout unduly inte frin with the exoleric o the ineoi'ent ,owevric of the people f the tato. o o iT ITote: See lcLeland v. Earshall County, 199 iowa 1232 (1925). Dubuque County v. Dubuqu e P RR;o Co. 4 Greene, 1, S (18b5). ir. Justice Greene (holding that under the con- stitution a county has the power to aid in building a railroad within its limits): '. . . But it is said that the constitution limits the state indebtedness to one htundred thousand dollars, and that therefore all the counties in the state cannot contract or create a. greater debt in the aZgregate, than the general assembly might create. That such county indebted- ness would be a debt within the state to be pro- vided for by taxation, and thus liabilities would be created which are repu nant to the constituiono It is also argued that as "the statoe cannot directly or indirectly become a stockholder in any corporation," so counties cannot become stock- holders without indirectly making the state a stockholder. Under such logic, individuality is. blended into mad coniusion. A county is magnified into a state, and no distinction recognized. If thiose state restrictions are applicable to counties, they must be equally applicable to the cities, and citizens of the state. It may, wviti e.ual propriety, be said that thle citizens of iowa cannot in the aggregate contract debts exceeding one lunmdred thousand dollars, and that no citizen can become a stockholder in any corporation. There is 134 quite as rmchi identity and affinity between a citizen and the state, as tiheie is bet-iee n a county and the state. But no onu will contend that a constitutional restriction upon the state government is also a restriction upon a citizen of tne state; ho,. then can it be claimeii tiLatb suoin a state restriction shiould be eniorced against a county? Such a construction would be latitudinarian in t.e extre:.e. o . " (Mr. Justice Kinney filed a dissenting opinion.) Saft v. Alber. 185 Iowa 1069, 1071-107, 1074-1075 (1C.15) r . Justice Gaynor (affirmin tieC contitutio Ca!l- it-y of tie tax imposed upon dealers in cigarette): ". . . Tie contention ol the plaintiffs is that this-law is absoliutely voiCd as .ade in contra- vention of Scction 7 of- Article VII of i-.e Consti- tution of this state, which reads as ollows: "Ever- law which imposes, coltinues, or revives a tax, shall distinctly state the tax, and the object to wnich it is to be applied; AfHd it shall not be sufficient to refer to any other- law to fix such tax or object." It i.s claimed -that thee statute is an attempted exercise of the taxingj power, and an attempt to impose a tax upon property and person for revenue; that it iails to state the object to whichl t!he tax is to be applied, ald is in contravention of tihe Constitution, in so far as it refers to another law for thie purpose o fixing the tax and. its object. It will be noted that the statute against whici the complaiint is lodged -rovides that the tax snall be in addi- tion to all other taxes and penalties, and shall be assessed, collected, and distributed in the same manner as tkle mulct li uo: tax, and shall be a lien, etc. A tax, in the broad seOse, is for tihe purpose of raising revenue, and the revenue, whle:l raised, is intended to meet the specific demands o thle governmen1t. The govern- ent assumes, or may assume, certain financial obligations whichI it is bou .d to disciarge. These obligations must rise out of gt.overnmental neces- sity. o ach governmental demaL.d for revenue is capable of ascertainment before i~e revenue is crea-ed to meet it. It is t'hrouhi he .-ta-1ing power that revenue iproducedThe reveaue ivs mcocrced. Te revenue so produced is to be n eld by proper governme it officers to meet the obliations of tlie state; t. be distributed and aplied to auliorized purposes0 ien taxes are autorlized and� revenue contemplated throuh tha. means, t'he need of and pur.xoses to wiich the :revenue is to be appliecd mu.st be ascertained and determr.ine.( There must be a need of revei-nue for governmental purposes, and these puposes must be stated. in te act which autiori zes trhe tax out oi wnichA the revenue come s The object of tiI co nsti-utional pro- vision is to safe guard t:ie exaction of revenue,-- the impiosition of tax.es0 To tu end, the re ,iiemenit is ade that the leji.lature determine, in the first place, the need of revenue, and second, trie purpose or urposes for whlich it is needed; and the tax must be levied and exacted to meet the needs so found to e xist. Oterwise, without the need of revenue, wi-tho GAut any specific purpose in mind to which revenue can be applied, the legislature could. autiorize the levy of a tax and force its collection, secu@ e the revenue, and hold it for no defini.e tpurpose. It is not conceivable that a body of men1 representin the people can intelligently determine tie need of revenue until they have ascertained wiierein the need lies to which thie revenue is to be applied. To impose a tax for no specific purpose is to provide revenue for no specific purpose. A gov- ernment cannot be economically admiinistered. where its legislative officers do not anticipate and know the need of revenue and the purposes to wiich it is apelied, before they enter upon the field of levying taxes to meet the need or satis- fy thie purpose. Of course, there are expenses incident to government whici are general in tneir nature. They always exist, -thou.hi the amount of thie need cannot be definitely determined. Yet these general needs can be approximately determined, though the amount cannot be definitely known. So the levy of taxes {or general puriposes is suffici- ently definite in scope and purpose to limit the revenue collected by means of the tax to a specific and definite purposeo . ' 186 "o . o So it follows iat, if th s sta- tute were enacted under the ge::ieral taxin: poer, and io0 thLe pu.rose oi raising revew'ue for t~e support oft he _c vernmini, wa e would be compelled LI to hold with. tuie appell at, anCd say t.ait i dcoes not come up 8lo h;ie reacLuire- mel-s of bte povision O '~'e Constit.ion he.reinbeore oed.L Thie, nowevr, w e ca L d. o. No lb, uhe le slature recogizi, or thinin t:a it recoized:, an evil i; the traffic in ci~~aet'- es, felt t& e ubCLic good demaanded that the ruestraininL hand o the law be placed upon the r Thereupon, the legis- lature, in its seai: g wisdom, iJenacted oGtion 0C)6 of the Code of 1897, throuh; whici, it uideCr- tool to prohlibit this sort of 1traiic, aId pro- vided a penaly for an violation a1 it inhibitin. lce thou.ht o i tl leeislatur:e ;vienly, was that' tIhe traffic in cigarette G was inimical to the pu.b- lic good, acL ou. t t i o be su cressed.. T.he traffic was made unlawful Th11:S utlawfu't1 traffic was carried on in buildings inot o&wnued by thie person carryinc on the illegal tr-t-iic. The uhouilt of the legislature. seems -hen, to have M'en tht-, as an additional deterrent to ithe unlawful business, a penaty oujht to be exacted of any :rson who allowed his buildiin; to be used for tno u.awful urpose; and so a penalty o.f 00 was imposed upon the person so perimitting it to be unlawfuly used, and upon the propri-y permitted to be used. This was in no sense a 'ta, for reu venue, tnhoujh it may afford revenue. Its pimarr purpose was, not to secure levenue, but to aid in. the enforcezleunt of the iinibition found in Section 5006. Te tink this action is controllec by what was said o this cou. ret in Hode o v L.;b scatine County, 121 Iowa 482, and Cook v. sh T all COUt, 119 Iowa s84; though in neithe, of theee cases wa&s -ithe p-r7ecis point ure & here, pr~s.ented or conside red. However, the reasonin of those cases and the basic prin1cciple upOn which t Iey I were deccided control in th:is case. Both Gthse cases wont to the npreme Court of terz Uiited obates, and. were affirmed. See ofe v. H.uscatinu County, . 16 U.S. 276 (49 L. Edo. ~7T) Cooki v. iarshall County, 196 UoS. 261 (49 L .. . 4r1- "7e think )o action of the court in disisssin. plai n.iff1s' pitio was rist, an it is--Afirme. Note: Carl H. Erbe, Constitutional Limitations on Indebtedness in Iowa, 22 iowa Journal of historiy and Polities, 36c. 137 Chapter XVIII Gorporations Elson v. /right. 134 Iowa 634, 636-637 (1907) Mr. Justice McClain (holding that an assessment in a receivership iroceeding is the proper meth- od for enforcing the double liability of a Etockholder of an insolvent bank): . . . The double liabilit of stockholders in banks is provided for in section 9 of article 8 of the State Constitution, but t e metnod of enforcing such liability is left to be determined by statute. There are similar constitutional provisions in other States, and ti-e statutes with reference to the enforcement of the liability have been various. In thie absence of any specific provision, the liability o tie stock- holder under a constitutional or statutory regu- lation making him liable for the debts of the corporation has sometim--ies been_ treated as an individual liability to the creditors to be enforced by a bill in equity brouGt by one creditor in behalf o all, against one stock- holder or any number of them , with the ri0ht of the stockholder held liable in such a proceeding to Lhave contribution againist other stckholders similarly liable. Erickson v. es::itn, 46 T. H. 372; t v. cCormak, 17 Ohio St. 86; Umsted v. Buskirk, 17 Ohio St. 114; Palmer v. Woods, 149 Ill. 146 (35 -.E. 1122). And undeir this general theory it wJas early held in Tew York cases tnat an unsatisfied judgment against GIie cor-oration was not even prima facie evidence of thie liability of the stockholder. 2 horawetz, Corlporations (2d Ed.), section 887. But tis view has not been assented .to in other jurisdictions, anu tie validity of a judcmeti - as snoowing.. thie liability of tie corp-,ora- tion as t ie-basis of ai action aainst Ea stock- holder to enfor e his iidivicdua liability has been held conclusive. 2 ,lorawetO, ororations (2d Ed. ), section 886. The individulj-., liability of the stock- holder under double liability provisions has been treated as analogous to hiAs liability -or unpaid assessments; and it is pointed out tn-at , .lthough tiere is a distinction between tnesae two classes of liability, the one being by way oi sec.ri to the creditor for te debts of the coiror_~-tion, anud the other a direct liability to tne corporation itself, yet as to ithe met~iods of enforcemcnllt there is no 18 reason for any substantial difference. Tie inCebtedness of the corporation must be establi-:Kedc in either case, and can only b(e established by an action aogainst tie corporation itself. When such indebtedness ias bee n established, and the inability o- the corporation to satisfy it has been determined, then as to either class of sbtockh ,olders' li-otities the recei ver, represent- ing tLe creditors as well r tile corporatlin, may proceed agaist te stockhliole ir, i tiie case of unpaid subsciptions, ior tie uirpo e of cu.jht to be paid over to satisfy the crcOitors, and in tie case o ine stokolder' ouble i- ability- .o collect :. trust funC out of which the debts of the corpora,tion are C be sa~tisfied In eiteir case, in tC very na ture o hiin, t;e enf orcemenC o:. -ie stockhLolderE' li aility must be prediedi_ upon-9the as cer-inment of uhe debts oL te cor;oration and tie pr,>oportionate taiount to be levied on each EbockoloCder to atisfy SLOchl ind;ebtedniss; and it is not neces- a y thant tie stockliholdaiO be inldiviCcully a party to the rcceiversip proceedins ini which tile indebteCless ol te ororation is detemined, ancd thnie afmount_ of a.ssessmn't to be collected is fixed. . ." (The court huld that under the statute in force at the time th e cau ofi action arose the s tockholder vwas not bounVI by tne assess.~nt pir to the assessment.)C Note: See Liability oi Subscriberv. to Coerorate Stock Under lowa Statutes, 11 Iowa Law -eview, 369. Burlington R. & L. Coo v. City of Burlington. 188 Iowa 272, 277-278 (12 0) fMr. Justice Evans (holdin s that the legislature has the power to imposi upon a corporation oblig;ations additional to thliose imposed upon it at the tiime o its creation) ". . . Our conclusion reached in the o ne- going paragraph is o itself decisive Our conclusieion upon th- second iuestion is as ci- sive The co-ntract conitended for by plaintiff f;as beyonl t' power of tihe city council to akeo 139 All power in the city council to grant a fran- chise in any forC is coferred upon it by the legislturI . Trhe power thus confer ecL is a- limited one0 Sectiln 1619 of - h Code o f 1897 wasD s follows: "Sec. bl9. The articles of incorporation, by-laws, rules and reglliations of corporations hereLafter organized under tn C provisions of this title, or w.oe organization may be adopte,- or amnded hereunder, shall at all times be subjuct to conditions imiposed upon the enjoymenlt thr,of, vhenevcr thi general assembly sall deem neces- sary for the public goo" The foregoing was a substantial re-enactmient o0 Section 109 of the Code of 1873. The effect of this section was -to rserve o thei legislature full power o-f futue leoislation, wViich should beb bliatoJ y botIh u-pon the city and upon tne operat in corportion. Section 1056-a44 of the Suppleome, of 1913 is as follows: USec. C 56-44. That in every such ci;y tie owner of any street railvway occu~in or usin any bridge shall construct, reconstruct and repair the a vin or flooring on said bridge- three and onc-alf feet eachl way from t e center line of tihe space between the rails of its tracks, tie -ame to be ord0erod, doneu, assessedt and paid ftor in the manner provided fo paving in S 0tions ci-i huTndred trirty-four ad eight hundred hirty-five of tIe Codeo" it is clear, tarefore, tnt this statute imposed upon tie plaintiff corporation the very obligation w:rich is so :gh to be e-nforc d by this special assessment No querition of impairment of the obligtion ofi a cointract is involved, nor any ot-ier con stitut ional uestliono If there wXLr, it would be f:ully answered byJ Section 12 of Article 8 of t1ne Constitution ci Iowa, as collows: "Sec. 12. 3ubject to the .provisions oi -thlis art-icle, tiLe cnr-ral assembly snail Iave power to ameTL or repeal all laws for the organization or creation of corporations, or 3:Santil of special or zXclusive privileges or imnmunitie:, b'y a vote ofL two t irds ol ec braLc of the cnral assonm- bly; and_ no exclusive privileges, ecpt as in tLis rticl. rovided., ha.ll over be gra td." 140 It follows that the order of the district court was right, and it is accordingly,--.ffirmed." Sioux City Street Ry. Co. v. City of Sionux City. 138 U.S. 98, 107-108; 34 L. Ed. 898, 901-902 (1890). Supra p. 114 Iowa Telephone Coo v. City of Keokuk. $26 Fed. 82, 92-93, 97, 98-99 (1915). Wade, J., (holding that article 8, section 12 of the Iowa constitution does not authorize the legislature to empower a city to require a tele- phone company to secure a city franchise as a condition prececdent to its right to maintain its plant under a ~ranchise which it had secured under prior statutes): ". . . In this case counsel rely upon sec- tion 1090, Code of 1873 (section 1619, Code of 1897), as an express reservation by the state, autLuorizigg it to at any time withdraw or revoke any right or franchise which the telephone company acquired by constructing its line under authority of section 1324 of Code of 1873, as amerided by chapter 104 of the Acts of the 19- th G neral Assembly. The section relied upon is as follows: "The articles of incorporation, by-laws, rules, and regt.lations of coirporations -reafter organized under th~e provisions of tis titl, or 0wliose or- ganization imay be ado.peed or am;inde hereundeL, shall, at all times, be subject to legislative control, and. m ray !be, a any, time, altred, abridge d, or set :side by law, ancd every 1ranlc.aise obtained, used, or en.joyed by suci corporatio , may be reg- ulated, ithihold , or be subject to conditions imposed upon the enjoyment tiereof, vnleicver the General Assembly siall deein, necessary for the public good. Reference is also iade to section 12, art. 8, of tic Constitution o Iowa, wiiii is as follows: "Subject to tie provisions of thiis article, the General Assembly siall have ower to amend or r-peal all laws for the organization or creation 141 of .orporations or granting of special or exclu- sive privileges or immunities, by a vote of two- tihirds of each branch of the General Assembly; and no exclusive privileges, except as in this article provided, shall over bc granted." The argument in support of tei claim tiat those provisicns constitute an expressed reser- vation of pow%,r to enact sections 775 and 776 of the Code of 1897 fails to observe the distinction between the "franchise" referred to in section 1619 of the Code of 1897 and the "franchise"' sr iilege acquired by telephone companies acting under the authority of section 1524, Code of 1875. The provisions of the Code and tnh Constitution as aforesaid clearly have reference to the powers granted to a corporation, and have no relation to the property rights of a corporation acquired under such powe rs. The corporation being a creature of statute, -the L-,gis1ature expressly reserved the right to change the powers granted an�d to take away such powers at any time. This rescrviv-tion authorized thle state to cven dissolve a corp;ora- tion and destroy all its functions but, even this would in no manner affect property righlts acquired by it before its dissolution or dostruction. That tiie co1nsti tut ional provision relates solely to the powers of a corporationi, as distin- guished from teir property rights, has been settled by the Supre e Courtu in Los oines Street Railway Co. v Street Railw y Co., 7b Iowa, 523, . IT. 610, 35 T . 602, in whici it is saiL: "The article limits, to some extent, iti powers and. rints w:i wch a bod.y of men mi: t claim as a corporation e do not think that it was intended to limit tic powers and rignu s of indi- viCuals, occept in tneir rlatUion to a corpora- tion. Yow, wn-ile it miay be tha tino plaintiff's assignor was a corpoiation, ye t the righ;t in question (i-,public francnise) was not a corporate ri ght If it exists, it is simply by contract, as an individual might obtain and enjoy the right. . . " ". . . The foregoing disposes of the question presented, if Keokuk were a city organized under the general law, and no ordinances were involved. Does the fact that Keokuk was a special charter city give it a power, not possessed by otir cities, to require a franchise before the cornm- 142 plainant can continue its use of the streets of the city? In other worus, aid the state reserve to itself t e power o1 gSrantinl tuie use of streets to telephone companies ini all tie cities of the state, except te compa~cratively few special charter cities; an;l did tCe staLe, as to tese special c ariter cities, mlke an exception, and grant to tne special charter cities the excluive ,ower to determine wAuether tKeir streets coulad be usecd by elepone lines or not? Such a purpose upon the part of the state is hardly conceivable, and certainly could. not be shown except by the plainest legislative enactment. It is hard to believe that bthe Leislatu-re inteinded to exercise the power to permiit the ause ofi Le stees in cities s-urrounidinC Keokuk by telep ionie com- painies, and to authorize the city of ieokuk to, at its pleasure, bar such lines from passing thr ouh the city. . The legislature conferred no power upon cities not under special charte to re uire or grant fr1-ancises, althoug the statutes under whic noncharter cities are organized are very broad in empowsering such cities to adopt all ordinances for the e.eral welfare, not inconsistent wi-tn lawo Tne general stat-ute does not include the word , laws," as does t-ie ..harter of the city of Keokuik, but the grant of -ite charter to make "such laws and ordinances" certainly does not vest 1the power in the corporation to pass a la" inconsistent with tae general law of -i.Le sta-eo Inasmuch as the state, wit U refeence to cities not under Epecial ciarter, reserved tLe power to grant the use of che streets in cities for telephones, I can find nothin in the c -arter o3,: in the authorities, iwhich justiiies me in believing th& iu was the intention 0D1 tie Leilature to con- fer upon special charter cities t i extra- ordinary power, wiich is an act o-0 sovereignty, and not an exercise of police power. The regu- lation of telegraph and telepi1one lines is an exercise of police power, but tCle rant is an 143 exercise of sovereign power, which cani only be exercised by ti-e state, or by a municipality by the express author.ity1 of the stateo This express autorit was n�ot granted to -te city of iK'eokuk. In Chamberlain v. Iowa Telephone Co., supra, it is said: 'Cities arnd incorporated towns have no power to permit such companies to use their streets a-nd other public places for their poles and lines, and unless tiat power was given in the act in ciuestion, they had. no right to enter thereon.' The act in question relates to section 1324 of the Code of 1873 as ameided, under ,hich complainant claims its right to use the streets of tie city of Keoikuki T1he cha ter of the city of Ieokuk gives it no power with reference to granting or witiholcing franchise to telephone companies not possessed by the other cities of the state. This conclusion eliminates any application of section 21, chapter 116, of th;e Acts ci the lth Gelral Assembly (section 9'', Code 1897), wiich provides tiiat: "TN1o provisions of tIis Code, or Ilaws hereafter enacted, relating to the powers, duties, liabilities, or obligations of cities or towns, s.iall in any manner affect, or be construe to affect, cities while acting under special ciarter, unless the same shnall have special reference, or are made applicable to such citiies' Counsel insist that this scction limits the eaac-ment of the ineteenth G.eneral Assem- bly, ini which the words "or telephone were inserted in section 1324, because said amendment was not specifically made applicable to special charter cities, Inasmuclh as the city of Keokuk had before said amendment no power -to grant or withhold telephone francilises, this law did. not affect it in the least. It took away no power that it had; it imposed no obli- ga-tion and no restriction The section relied upon specifically limits ite application to those "llaws hereafter enacted relating to the powers, duties, liabilities, or obligations of cities or townso The act of the ninete.etth General Assembly had no relation to these matters. It dealt purely with the power 1 thle state. Note: See -ne Right to Repeal a Corporate Franchise, 2 lowa Law Bulletin, 84. 144 Chapter XIX Amiendments to the Constitution Koehler & Lange v. Hill. 60 Iowa 543, 563-568 (1883). Mr. Justice Seevers . "The Constitution pro- vides that "the powers of the governmrint of Iowa shall be divided into three separate departments-- the legislative, the executive, and the judicial; and no person charged with the exercise of powers properly belonging 'to one of these departients shall exercise any function appertaining to either of the others, except in cases hereinafter express- ly directed and permitted." 'Then the Nineteenth General Asseambly came to consider the question as to whether or not it would agree to the constitu- tional amendment proposed in the Eighteenth General Assembly, it did so in the following manner and formil, omitting immaterial p.rtions thereof: "Joint resolution agreeing to an amiendment of the Constitution of the State of Io ,wa,, orhhibit- in the manufacture and sale of intoxicatin liquors as a beverage within this State. "'tHEREAS, Th:e Eighteenth General Assembly of the State of Iora did in due forim, by a majority of the mernbers elected to each of the two houses, 'C t 0 " , ; agree to a proposed armendient to the Constitution of this State, to add as section 26, to article I of said Constitution, the following: "SECTION 26: No person shall manufacture for sale, or sell, or keep for sale, as a beverage, any intoxicating liquors whatever, including ale, wine and beer." It will be observed the words "or to be used" are not in this resolution, and that the Nineteenth General Assembly determined, in substance, such words were no.t in the resolution when it was agreed to by the Eighteenth General Assebly. 145 Now it is insisted by counsel that the courts and all persons are bound by the deterination of a fact by the Nineteenth General Assembly, which occurred or did not occur in the Eighteenth General Assembly. The argmLent goes further, and it is insisted the courts are concluded and estopped from ascertaining the truth, and that the parties to this action and all persons are so concluded and estopped, no imatter what the truth may be. In support of this proposition Shawhan v. Loffer 24 Iowa, 217; Coojer v. Sunderland, 3 Id., 114; Boker v. Chaleine, 12 Id., 204; Bonsall v. Isett, 14 Id., 309; Morrow v. Weed, 4 Id., 77; Balliner v. Tarbell 16 Id., 491; Pursle~(v. Hay_ 22 Id., 11; and Lyon v. Vanatta, 35 Id., 521, are cited. In these cases, or the most of themi, there iwas a defective service of notice of the action or pro- ceeding. While this was so, the court p:roceeded and granted the relief asked. It was held, in a collateral proceeding attacking the judgment of the court, that it was erroneous only, and not void. An erroneous judgment can only be corrected in a direct proceeding by appeal or other appro- priate remedy provided by law, If the court ren- dering the judgment is one of general jurisdiction the presumption is always indulged, where nothing appears to the contrary, that such court had juris- diction. Every court of that character has, of necessity, the power to inquire and determine as to its own jurisdiction, and if it co-uimfits an error in this respect the judgment is not void, but erroneous merely. But if it affirmatively appears of record that such a court did not have jurisdic- tion over the subject-matter, or of the person against whom the judgment is rendered, such judg- ment would be absolutely void, and could not be enforced, Baker v. Chanline before cited, Conceding, then, that the determination of the Nineteenth General Assembly as to what was done by the Eighteenth is similar to the determination of a court in relation to its own jurisdiction, we then have a case where jurisdiction has been asserted by the assumption of a fact which the record of the Eighteenth General Assembly affirmatively shows did not exist; that is, the journal of the Senate 14-6 of the Eighteenth General Asse-rblv shows that body did not pass the joint resolution the 1 eNiteen- th General Assembly de termi-ined itc d. As this fact affirmiatively appears of record, the deter- minat ion of the Ninettenth Gene1ral AsseIbly is not bindinj oni anyone, and is absolutely void. It was hold in Dunconbe v. Prindle, 12 Iowa, I, that the recital in an act of the General Assembly was not conclusive as to private parties affected thereby, and, in that case, the recited fact was found to be otherwise than it had been deter.ined to be by the General Assembly. This, it seems to us, Uust be so, or a person might be deprived of his property and rights by the finding or recital of a fact by the General Assembly. For the argu- ,mlent is that such determination is conclusive, amounts to a verity, and cannot be impeached, however false it may be. To thus deprive a per- son of his property or of a substantial right, without trial by jury, or the opportunity to prove the truth, would be clearly unconstitutional, and an usurpation by the legislative depart,ient of the government of the powers exwpressly conferred upon the judiciary. It is further insisted that, under the Constitution, the Nineteenth General Assembly had the jurisdiction and eower to submit the anend-Jilent to the electors, provided it had been agreed to by the Eighteenth, and that, there- fore, it was the province of the Nineteenth General Assembly to inquire what the Eighteenth did, and for this purpose, and to this extent, it was in- vested by the Constitution with judicial powers. In support of this proposition, coufsel cite and rely on Brittian v. Kinnard, 1 Brad. & Bings., 432; Betts v. B~ !e) , 12 Pick., 572 Marton v. Mott, 12 W'heat., 19; Vanderhaven v You 11 Johns., 150; Birdsall v. Phill.is, 17 Wend., 464; Ex Parte katkins, 3 Peters, 192; The .eole v. Cit -of Rochester 21 Barb., 656; and gn v a. Varg, 37 Iowa, 78. The last case cited well illustrates the rule contended for, and the other cases cited are based upon the same rule, which is undisputed. The statute provided where a petition signed by one-third of the resident tax-payers of a township, "asking the question of aiding in the construction of any railroad to be submitted to the voters 147 thereof, it shall be the duty of the trustees * * to imimediately give notice of a sygcial election,"' for the purpose of determin- Ing such question. Before the trustees could order the election, they must determine the peti- tion had been signed by the requisite number of tax-payers, and to this extent they were invested wi'th judicial powers. Noowi, in Pyan v. ....it was held, under this st atute, where the trustees had given the requisite notice, and the election had been held, tax voted and duly levied, and it was sought to enjoin the collection on the ground that one-third of the tax-payers had not signed the petition, that the decision of this question by the trustees was conclusive. At the same time it was said such question could be re- exaiined and again "decided by the courts only upon an appeal, wTrite of error, certiorari, or other method provided for a direct review of the decision made by the trustees." The proceeding in which this ruling was made was collateral in character, and not direct. It cannot be questioned the decision of the trustees could have been reviewed on certiorari, and their decision reversed if the fact was the petition had not been signed by the requisite number of resident tax-payers. The plaintiff in the citod case, then, had a remedy which he failed to adopt. But it cannot be successfully maintain- ed in the case at bar tha't either party to this action, or any other person, could, by certiorari or otherwise, have brought before the courts for review acts of the legislative department of the gover~ment. It is clear, we thi-nk-, tle Nineteenth General Assembly could not hLave been enjoined by the courts, or in any manner prevented from passing th e joint resolution, with the recital therein, just as it did. A law may be declired unconstitutional by the judiciary, but its passage by the General 'ssem- bly cannot be prevented. The Des Moines Gas Co. v. The City of Des Moines, 44 Iowa, 505. There was no way known to the law, except the manner adopted in this case, by which the question as to the validity of the constitutional amendment could be tested in the courts. The logical result of the argument of counsel for the appellant is, 148 that it is for the General Assembly to say whether an amendment to the Constitution has been constitutionally adopted, and that their determination is conclusive and binding upon all persons. Therefore, it follows, the Nineteenth General Assembly could have deter- mined the Eighteenth General Assep6ly had agreed to an amendment which had never passed that body, and then agree thereto, and submit it to the people, and, if the seame was ratified by the electors, that it would be valid.. If this be so, the provision of the Constitution requiring it to be agreed to by two General Assemblies must be ignored, and certainly this will not be claimed. Each General Assembly is independent and supreme as the law-making power, within the limits prescribed by the Constitution. The last General Assembly which convenes may undo all that its predecessors have done. But it cannot, so to speak, put words into the mouth of any of its predecessors., . . (Mr. Justice Beck filed a dissenting opinion.) State of Iowa v. Brookhart 113 Iowa 250 (1901). On application to the lower court, relator was granted leave to bring an action in the name of the state to test his right to the office of county attorney, to which he claimed to have been duly chosen at the general election on November 6, 1900, and to oust defendant therefrom, alleg- ing that the defendant, who was the lawful incum- bent of said office prior and up to the first Monday (the 7th) of January, 1901, claimed the right to continue to hold said office under the provisions of an alleged ramendment to the consti- tution of the state. Defendant's demurrer to plaintiff's petition vwas overruled, and from this ruling defendant appeals.--Affirmed. 149 Per Curiam . . . Under these facts two questions are presented for our consideration: First. Was the amendment proposed and adopted in conformity with the requirements of our con- stitution? Second. Does such amendment, if it is a part of the constitution, extend the term of office of defendant? To a correct understanding of the diffi- culties involved in the second question it is proper to say that, without the amendment, the statutes of the state provide for annual general elections, at each of which some state, county, and other officers are chosen, and that, in view of the proposal in the amendment to omit any general election in 1901, and each second year thereafter, it was proper to provide for the occupancy of the offices which wvould otherwise have been-filled by elections held in those years,. and the method adopted seems to have been to ex- tend the terms of office of certain judges of the supreme and district courts, certain senators, and all the members of the lower house of the general assembly, and certain state, county and other officers that need not be here specifically named, By constitutional provision (article 5, section 11), the terms of office of the judges of the supreme and district courts commence on the first day of January, and terminate, there- fore, on the last day of December, and as to these there is no difficulty in applying the amendment; but by the provisions of the Code, section 1060, the terms of state, county, and other officers chosen at the general election commence on the first Lionday in January after their election (except in case of the governor and lieutenant governor, as to which see article 4, section 15) and by various constitutional and statutory pro- visions, which need not be specifically cited, all these officers hold office until their success- ors are duly elected and qualified. If the defendant, and other officers whose terms would otherwise expire on January 6, 1901, are the officers whose terms would be extended by the provisions of the amendment, then relator and other state, county, and minor officers chosen at the general election in November, 1900, ill not be entitled to hold office during the year 1901. 150 Relator conitends for construction of the amend- nent which i l .ke the extension of terms of offcc therein cont ated y to those whose successors would ot.erVise be chosen at the gen- eral election in 1901, hen, by te roiion of the aien.ent, no such officers would be chosen. the'. - -- I ve .9-t-1o ......h-oo t I. We address ourselves n.o to the first question, to wit, hother th.e 1oposed mnt hjs be2.n so proposed nd - dopted as to be a prt of the constitution. The provisions of section 1, article 10, of the conlstitution, with rof e0recoe to its ionmet, re os follos: "Section 1. An y aenoient or amrendm-ecnts to this constitution may be proposed in either house of the generl assembly; and if the sam" sll be agreed to by a majority of the m.embers elected to each of te two houses, such proposed aeond- ment shall be entered on their journals, with the yes and nays t - uthereon, and r rred to t .he risture to be coose t the next e el election, and shall be published, as Ii re 01al110YIoctio0 1_ provided by l:w, for three months ?revious to the timo of lIIak-ing such drice; ,nd if, in the general assembly so next chosen s aforoes'aid, such proposed amendent or ..eninents shall be agrCced to by 1 ajority of all the ~erbers elected to ech house, then it.,hall be the duty of the general assembly to sub-iit such proposed meTndmrent or menonts to the people in such manner and at such ti .e s the gencrl assembly shall provide; and if the people shall prove and ratify such c .O -linIt or Cendunts by a mjority of the electors qu-alified to vote for o bors of the GeCral assebly, voting thereon, :sue ..ndment 0 -:.,endouts sh" 1 1 be Co-.e a pprt of the constitution of th-is state ' The question, briefly state, is ,.oth : it is necossry that the prososod me d~nt s1ha111 be eteroed in full on t'� jourVn_'l of each Ihouse of te1 goner l assem- blyr by wh.ich it is .first proposed nd adopted, or whother t, entry on n e or both of such journals ay be by title, or by other method of identificationi. Similar cuostions have arisen under .the constitutirons of oter state, and the d.isions of e courts of such sttes have not been entirelyihrmonious. But in Koehler v. Ilill, 60 low, 54 finally decided in 188o, this court had occasion to consider a question rising 151 runder the section of the constitution rela.ting to its camendmn t above set out, and it is im- portant to determine what was th ere dec ided it*L reference to the cqustion nowv before us. If there are conclusions of the court authori- tativelv annonced in that case vhich settle the present case, we ought to adbero to them, unless they a.re manifestly unsound; for in no clkss of c.ses co.ing before us ought we to so carefully guard against vacillation and un certainty as in cases w;rhich involve a con- struction of t.he fundamental law of the state, especinll if ,the rule of construction announced has stood for many years unquestioned in this court, and n-may be presumed to have een the rule in accordfncoe with which intervening legislative action, including the submission of t'he amend- ment under consideration, has been taken. In the Koehler Case was involved the question whether the so-called pro3ibitorv endment head become a part of the constitution, and a iong the objections to it .,which weCe con-.sidered in the opinions of the judges was the very objection now raised,--that the -roposed a mene~i;.nt had not been entered upon the journals of the tw;o houses of the eig teenth general assembly, in which th.t amendment was first proposed Other ques- tions were raised in that case, and fully consid- ered by the court, Its jurisdiction to pass on the validity of the proposed amendnent as very fully considered, and such jurisdiction was sustained. The court Clso dre;: ssed itself to the contention th.t the resolution, with the offici.-l entries thereon showing its pssage by the eighteenth general assembly, was conclusive as to the regularity of the proceedings; and after elaborate consideration such contention was overruled. The court also overruled the contention th-..t the action of the nineteenth general assembly, reciting the adoption of the resolution by the eighteenth general assembly, ,was conclusive as to the regularity of the prior action. It al.so found that the amendment set forth in the resolution wihich pF)assed the eighteenth general asseIbly, and was entered in full on its journal, contained certain words not found in the amendmnct as adopted by the nineteenth general assembly, a d submitted to the voters; and it decided that this defect was fatal, and th .t on this account the amlendment which w.,as voted upon did not become a part of the consti- tution. It is now contended that tese were the points really decided and tihe decision of 15 2 thoem determinod thc result of the case, and, therefore, what was said as to the point now before us w-s dictum; that is, in the. 1 ng-uage quoted by counsel for appeollnt, and mvade his ownM, an observation by a judge on a leal questi on suggosted by the case before him, but not arising in such a maner as to require decision, and therefore not binding s a pfe- codnnt upon other judges, althou-h it may be entitled to more or loss respect." The objoc- tion to giving grea-t v.eight to a dictum is that whit is thus stated is beyond the power of the court to decide, because the court can only adjudicate questions which are before it, and th.lt, s the question w:as not before the court, wht is said is to be understood as having been said without the advantage of argLment. See Cohons v. Virginia, 6 7heat. 264, 399, 400 (5 L. Ed. 257); Frants v. Brown, 17 Serg. & R. 287, 289; Wlamblough, Study of Cases, section 13. In the early English cases the term is used with reference to random remakks nmade by a judge at nisi jnrius, not emboging his ruling on any question irosented to hiim. See Sauadcrson v. Ro.les, 4 Burr. (K. B.), 2064, 2068; Steel v . Ho.ghton, 1 H. Bl. 51, 53; Parton v. Villiams, 3 Barn. & Ald. 339, 341. But by no authority is the exression of the vios of thle court on a question in the case regarded as dictum. Rohrback v. Insurance Co. 62 IT. Y. 47, 58; Buchner v. R .ilna y Co., 60 Wis, 264, 267 (19 N. T. Rep. 56); Stto v. Clarke, 3 Nov. 566, 572; Clark v. ''homas 4 Hisk. (Tenn.), 419, 421; Alexander v. WTorthington, 5 'Id. 471, 488. 12d exalination of the record orn which the Koehlr Case was i . 11 0o o-7 1 co- .C,-so T~ submitted shows tha.t by the Dleaedings an issue was plainly raised as to whether it was necessary th..at the proposed amendment be entered in full on the journals of both houses of the gcncl.. assembly in whrich it is first proposed; that, under the evidence, the iamendment hich'1 ws agroed to by the sonate of the cig-hteenth general assembly ws not entered in full on the journal of the house of that general assembly (and this f..ilur was not merely as to the four words w'ich were omitted from the proposed almendmlent as it was subm-itted to the people); that this was one of the grounds on which the trial court eld the amendmont not a port of the constitution; that the rulin_ of the court on this point was assigned as an error; counsel on both sides. In the first opinion of the court in that case, and again in the opinion on rehearing (see pages 556, 638, 60 Iowa), the conclusion of tile court is definitely expressed that the entry on the journals required by the constitution is an entry in full on the journal of each house, and that a reference by title to the resolution prop!osinU- the amenmdnent is not sufficient as to either journal. The judge wLho dissented on the original hearing, and again on the rehearing, treated this question as involved and decided in the :majority opinions. See page 581, 675, 60 Iowa. In each of the cases cited to us from other states involving the same ques- tion, and decided since the decision in the Koehler Case, that case has been referred to as supporting the contention that entry on the journal means entry in full. See Paving Co. v. Hilton, 69 Cal. 479, 507 (11 Pac. Rep.---; State v. Tufly, 19 Nev. 391, 393 (12 Pac. Rep. 835 ); State v. Herried 10 S. D. 109 (72 N. W. Rep 93, 956. These cases are not cited by us as supporting the proposition which we here insist was laid down on this point in the Koehler Case , but as showing that the point is considered as having been passed upon by the court in that case. The conc-lusion, therefore, expressed by this court in the Koehler Case, is not dictum, but is decision, and we must either follow it or overrule it. PTe consider that, inasmuch as it involves the construction of our o-wn constitution, and has been recognized for many years as making definite and certain the method to be pursued in amending the constitution, it should be followed. nmd in conclusion, with reference to tht case, we consider that it is not for us to determine that of the two questions involved relating to the method of amendin& the constitution one only was regarded as decided while the other was simply discussed. The conclusion of the court as to either one of these two questions would have determined the case, and one conclusion is as binding upon us as the other, ThIerefore, folloing the decision of the court in the Koehler Case, we hold that the proposed amendent, not having been entered upon the journal of the house of the Tent-Seventh 154 General Assembly, was not pro-osed and adopted as required by our constitution, and has not becoime a part thereof. This conclusion makes it necessaryto discuss the interpretation of the language of the ailendment, and leads to the result that relator is entitled to the office which he claims.--AFFIRT- IED. Jones v. McClaughry 169 Iowa 281, 294-297; 299-�03 (1915) ir. Justice Ladd (sustaining the statute provid- ing for holding persons to answer for felony without the intervention of a grand jury and holding that the aiflendmrent to the constitution upon which such statute relies is not void for want of si~1leness of the Ymanner in which it was subitted to the electors): ". . . The consequence of the conclusion that judgment of iiimprisomilent was not entered against plaintiff is not that he be released, but that he be remanded to the custody of the sheriff of Ada-s County to await trial of the offense charged to the information, unless Chap. 188 of the Acts of the 34th C. A., authorizing presentment by information, be inimical to Sec. 11i f Art. 1 of the Constitution. That chapter in its first section provides that criiminal offenses which theretofore might be prosecuted by indictment only may be prosecuted "either on indictment, as is now or may be hereafter provided, or on information as herein provided, and the district and supreme court shall possess and exercise the same power and jurisdiction to hear, try and deter3line prosecutions on information, as herein provided, for all such criminal offenses, to issue writs and process, and do all other acts therein, as they possess and may exercise in cases of like prosecutions upon indictment." The third section requires the information to be endorsed "a true inforiation," signed b the county attorney. Sec. 4 requires the county attorney to endorse or cause to be endorsed therepn thie minutes of evidence and the names of witnesses he expects to call and to serve notice as in trials on indictments if he wishes to call others. 155 Sec. 5 exacts that the information be sworn to by the county attorney before a district judge or clerk of court and be approved before fil- in by the district judge. There are also provisions relating to furnishing the accused a copy, amendin, the information, authorizing the sali-e proceedings thereon as in case of indictment and judgment on written plea of guilty in vacation. An information such as herein con- templated was filed against p1aintiff, charging him with the crine of kidnapping a young woman, vwhich is made a felony by Sec. 4765 of the Code, and he was held thereunder when brought berfre the court and turned over to the defendant; and it is contended by his counsel that the entire chapter is void because contrary to Sec. 11 of Art. I of the Constitution, prescribing how prosecutions shall be begun: 'All offenses less than felony, and in which the IDunishment does not exceed a fine of one hundred dollars, or imprisoIment for thirty days, shall be tried sur-arily before a justice of the peace, or other officer authorized by law, on information under oath, without indict- ment, or the intervention of a grand jury, sav- ing to the defendant the right of appeal; and no person shall be held to answer for any higher criminal offense, unless on presentment or indictment by a grand jury, excepting in cases arising in the army or nay y, or in the miilitia, when in actual service, in time of w-ar or public danger." Though within the terms of a purported amendment to this section, it is contended by counsel for plaintiff that such amendment vwas not properly submitted to the electors of the state, With three others, it was adopted at the general election of 1884 and is in words follow- ing: "The grnd jury may consist of any number of members not less than five, nor more than fifteen, as the general assembly may by lawv provide, or the general assembly may provide for holding persons to answer for any criminal offense without the intervention of the grand jury.' 156 It will be noted that whereas only a pre- scribed class of offenses may be prosecuted by informriation under the original section, and all others must be by indictment of a grand jury, defined as will hereafter appear, to be not less than twrelve nor more than twenty-three persons, under the amendment all may be prose- cuted by information; and if -prosecuted by in- dictrmient, this shall be by not less than five nor more than fifteen persons. The subject of both the original and amendment is the node of accusation of those charged with the coiission of public offenses, how this shall be done being a matter of detail. The particular criticism of the amendment is that it is in reality two amendments even though designated as one; and, therefore, its submission as one was in viola- tion of Sec. 2 of Art. 10 of the Constitution directing that "If two or iore amendments shall be submitted at the same time, they shall be submitted in such manlier that th.e electors shrall vote for or-against each of suchl amendments separately." The importance of this provision was referred to in Lobaugh v. Cook, 127 Iowa 181. Its purpose is to exact the subm:lission of each amnc n~ie t u-on its merits alone and thereby secure the free and independent expression of the will of the people thereon. Incongruous matter and th-t having no connection with the main subject is excluded and the evil of loading a meritorious proposition with another of doubtfu propriety obviated. The elector in approving or rejecting cannot be put in a position where he may be compelled, in order to aid in carrying a proposition, to vote also for another which, if separately submitted, he would reject. But this does not mean that every proposed c1hange shall necessarily be analyzed into its minutest coriponent parts and these sepa- rately submitted. All intended is that but one subject be dealt with in a sinegle amendment. "rIF, as said in Lobaugh v. Cook, "the amendment has but one object and purpose, and all else included therein is incidental thereto, and reasonably necessary to effect the object and purpose contemplated, it is not inimical to the charge of containing more than one amendment." 157 . s said, the subject involved in the amendrent was the manner of presentation of a person accused of crime in court. Whether this were to be done by information or indictent was incidental to the main subject and calculated to accomplish the pu7rpose of a formal accusation of the particular offense coiLitted. Under Sec. 11 of Article I of the Constitution the accusation could be made by informaation in a limited class of cases and all others were required to be by indictment by arand jury. The term ",rand jury" is not defined in the Constitution, and we nec- essarily recur to the principles of the coimuon law and ascertain that it is an accusing body composed of not less than twelve nor more than twenty-three jurors, and such a jury evidently was contemplated. English v. State, 31 Fla. 340, 12 So. 689; State v. Hartlej, 22 1ev. 343, 28 L. R. A. 33; State v. Barker, 107 N. C. 913, 10 L. R. A. 50; 20 Cyc 1317. The purpose of the amencbiaeiit was to render possible prosecution for all offenses by inform- ation and so to do without interfering with presentment by way of indictment and to interfere therewith only in reducing the number of jurors required. These changes , were merely details in the matter of the presentment of alleged offenders and might well be effected by a single aend ent, especially as this was of a single section of an articlu of the Constitution. V[hile not more than a single subject is to be covered by an amendment, some latitude necessarily must be indulged in ascertaining the real subject touched and the purpose to be accomplished; and witlhin proper limitations, the legislature may exercise its discretion in defining the subject matter to be included in a proposed amendment. This is necess- arily involved in th e power of -roposincg ,aend- ments to the Constitution conferred on that body and we are not ready to say that in reducng the number composin the grand jury and authorizin-g prosecution without intervention thereof, this discretion was exceeded. Je are the more confirim- ed in this conclusion because of the reconitien of the amendment as valid by all departments of government for nearly thirty years. In our opinion, there was no defect in its submission to the electors of the state. 158 V. Counsel for plaintiff also contend that the amendment was never entered on the journal of the senate nor the yeas and nays taken as is necessary under Sec. 1 of Article 10 of the Constitution, provifing that "Any miendment or unendlents to this Constitution may be proposed in either lhouse of the general assembly; and if the same shall be -areed to by a-majority of the members elected to each of the two houses, such proposed amonendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to thl legis- lature to be chosen at the next general election." "Entered" on the journal was held in Koehler v. Hill, 60 Iow T. 54B, followed by State v. Brookhart, 113 Iowa 250, to mean spread at length thereon. The object of spreading on the record, as stated in Koehlor v. Iill, is to "prserve the identica amend-ient proposed and in an authentic form which, under the Constitution, is to come before the succeeding General Assembly." The entry in the journal of the house of representatives is con- ceded to be without defect in this resrect and that of the sonate discloses that a resolution containin. four a-end.ints, including that in question, was miessaged to the senate from the house as having been passed by thbt body and was then spread at length on the journal of the senate. Thereafter, the resolution described as "House Joint Rosolution b- Dungr proposing amend- ments to the Constitution,1 was repoited by the coimimittee on constitutional ameindcients with the recoli.ndation "that it be agreed to." Later on, the journal shows that: "Joint resolutions proposingf a1mendiments to the Constitution of the St-te, were taken up and considered. � Senator Russell of Jones moved to strike out all except the two first resolutions, which motion was lost. "Sonator Russell of Jones noved to strike out the last resolution, which did not previal. "The question being on the engrossment of the resolution, Senator Larraboe moved that the rule be suspended, and the resolution be consid- ered engrossed, .and read a third time now, which nuotion prevailed, and the resolution was read a third time. 159 "The question being, shall the resolution pass? The yeas were: MSetting out the vote showing 37 .voting for, 5 votes against, and absent or not voting 8.) "So the resolution passed and the time was agreed to." No other resolution for the submission of amendment or amendments to the Constitution was then pending before either house, so that the inference that the resolution riessaged from the house of representatives was that referred to cannot be avoided and the identity with that passed is put beyond doubt. The motions of Sentor Russell evidently had reference to "amendment," in making use of the word "reso- lution." It was not necessary to record the resolution again, it being sufficient that it with the amendments was spread upon -th journal somewhere and was identified as such in entering the yeas and nays thereon, for this a-prised the succeedio general assembly of precisely w h\ t had been done by way of proposing the amenenents. The Constitution contains no requirement that the proposal of each amendment shall be voted on separately in either house. Sec. 29 of .Article 3 of the Constitution relates to an act of the legislature and Sec. 1 of Article 10, in saying "any amendment or amendments," may be proposed by either house and if agreed to "such proposed amendment shall be entered on their journals with the yeas and nays taken thereon," is complied with if such entry is of a resolution containing several amendments as though there were but one. Surely the larger number includes the less and each amendment contained therein may be said to have been entered_ and the yeas and nays taken thereon. VI. Counsel for plaintiff next argue that the amendment did not itself amend the Constitution but merely authorized the legislature to do so and assumiJ.ng this, argue that it cannot be done. Without inquiring into the consequence of such a course, it is enough to say that such is not a fair interpretation of its effect. The clause of the amendment thus criticised is, "the general assembly may provide for holding persons to answer for any criinal offense without the inter- vention of the grand jury.? The effect of this when construed in connection with Sec. 11 of 160 Article 1i, heretofore quoted, was to exact the presentment for all offenses where the penalty exceeds thirty days' i1risonqm.nent or a fine of one hundred dollars by the in- dictment of a grand jury, unless for such offenses or some of thel the lesl.lature pro- vide some other n-ethod of holding persons to answer, and if so, this may be done without a grand jury. Of course, this ch ane igth t well have been accompliso1ed by substituting this Amen ent for a portion of th e above section; but that wcs not essential to its armendient if, when rad toether, they are not necessarily contradictory, As seen, the amuedment when read with the original merely authorizes legislation in pursuance thereof, as it might properly do, and is -not vulnerable to the criticism urged. . ." Note:- For discussions of aeniendments of-7the Iowa Constitution see F. E. Horack, "'Recent Amendren1ents to th.e Constitution of Iowa," 3 low Journal of nistory and Politics, 286; Jcob Van der Zee, P1roposed Constitutional iendients in lowa," 7 Iow: Journal of History sand Politics, 266, 8 Idem 171; F. E. Horack, "Constitutional k.iend- nments in the Colrmronwealth of Iowa," 15 Iowa Historical Record, 449 and Carl H. Erbe, '"Anmend- ment of the Iowa Constitution," 23 Iowa Journal of Eistory and Politics, 103. * * * * 4 * * 161 Chapter XX Education and School Lands The High School of the County of Clayton v. The County of Clayton. 9 Iowa 175 (1859). This action was instituted by the board of trustees of t e Hi-h Sehool of Cla;-ton county, to recover of tLe county of Clayton tLe sum oi three tlounsand dollars, the amount of taxes levied by bie count: Jud e of said county, under section sixty o "an 1 act for the public instruction of the State of owa,' approved March 12, 1858, for hih school purposes Tie defendant demurred to tihe petition, assi S ning as cause, that the law -uider whic.i plaintiff claims is -void and unco-istitutioinal The demurrero was sustained and judgment rendered for the defendant. Plaintiff appeals. Stockton, J.--By te constitutiof of the State of Iowa, (section 4, ) it is provided that the educational interests of tie State, are confided to a Board of Education, whichi siall have full oower a-nd auhori4y to legislate and make all needful rules and reioglation in rela- tion to common schools, and other ecducational institutions, that are institcuted to receive aicd froim tie school and educational fu dc of the State. Upon this board is devolved tie duty of providing for tie education of all the youth of the State, by a system of common schools. Art 9, sections 1, 8, 12. It was held by this cour-t, i-. the case of The District Town-hip of -:e cit of tubufae v. the cit-ofI Dubuuc, 9W~, 262 t.,at so far as it was attempted by the General Assembly, in the tact for the public instruction of t:: State of Iowa," approved March 12th, 1858, to provide a system of education for the people of the State, the said act was invalid; that tiL.e cosJ.titution conferred the power to legislate o:1 this subject primiarily, upon the Board oi Eduocation, and not upon the general assembly; that sch power, in the first instance, was exclusively in tlie Board; and that the legislabure could only alter, amend, or repeal the acts, rules and re:gulations made or apassed by the Board. The question to be determined in this case is, whether the provisions of the act of March 12, 1858 authorizing the establishment of a high school by the Board of Presidents of school districts, in any county, (section 59,) are within the constitutional prohibitions upon the powers of the legislature. It is argued for the appellant, that the high school as constituted by the act aforesaid is not "an educational institution to receive aid from the school or university fund df the State," and not being such, it cannot be established b- the Board of Education, and may rijghtfully be provided for by the General Assem- bly, ito whom is committed the duty of e noouraging, by all suitable means, the promotion of intel- lectual, scientific, ental and agricultural improvement0 Constitution, art. 9, Div. 2, Sec , 6 It is evident from an examination of the act, that the high schIool was to be but an appendage to the common school system COntemplated by it. The board of presidents of school districts provided for in each county, might determine whether a high school should be established in such county; and if so, they were to elect nine trustees therefor, who, together withi the county superintendent of common schools, upon beingorganized as a corpora- tion, were to have charge of the higi school; to prescribe the bran-iches of learning tand science to be taught, and the text bolks to be used tierein, subject to the reconmmendation of the State Board of Education. The trustees were to report to the county superintendent, and the hiig school was to be subject to visitation from him aiid from the Superintendent of Public Instruction. The question of the polwer of the General Assembly to authorize and provide for these schools, in the act aforesaid, is not to be determined by the consideration, that tney were not to derive any support or assistance from the educational hlA T he atcitce, but were to be kept up by the :amt iy pt -ai 0 lone. They were to be free schools, (section 62,) and as such, though called high ashools, they were essentially common schools in the legitimate acceptation of the term; and however supported, were designed to be a component part of the educational system of the State; the original establishment of which, as well as its subsequent management and control, has been committed by the constitution to the Board of Education. 163 This Board has not deemed it advisable in the acts, rules and regulations, passed by it, to adopt, or re-enact the provisions of the act of the General Assembly of IM'arch 12, 1858, constitu- ting the hi4gh school. Nor do we understand that by virtue of the curative act of the Boarc, passed Dec. 15, 1858, the action of the school autnorities of Clayton county, in establishing a high school for said county, have been legalized. Admitting the power of the Board of Education to efiect the object intended, by any such act, we can only consider it as applying to such parts of the cormmon school system as have been continued in force by the said board. As no provision has been made for a "1high school," as part of the common school system of the State, no "'act done, contract made, or tax levieLd," in view of sucn object, can be considered as coming within the purview of the said curative act. Judgment affirmed. Fort Dodge City School District v. The District Township of Wahkansa. 15 Iowa 434 (1863). DEMP~RRER to petition sustained. Plaintiff excepted, and appeals. Wright, Ch. J.--The demurrer is so framed that it is almost impossible to understanda he precise objections taken to the petition. Vith- out, therefore, following each specification, we shall state generally and briefly our views of the law, so far as referred to by counsel: Io hether the town or city of Fort Dodge was incorporated or unincorporated prior to the vote taken for adopting a separate school district, as alleged in the petition, does not appear. If incorporated, then the act of December 24, 1858 (Rev., ch. 88, art. 4,) clearly confers the power to thus organize, and points out the manner for effectin the same. If not iincororated, then the succeeding article (5) confers the same powers upon towns and villages containing not less than three hundred inhabitants. But this latter act is claimed to be unconstitutional, upon the ground that it was passed by the Legislature, and not by the Board of Education. 164 The ConEtitution (art. 9, sec. 8) gives the Board full power to legislate in relation to com- mon schools and other educational institutions, "but all acts, rules and regulations of said board may be altered, amended or repealed by the General Assembly.1 Article 5 of chapter 88 (passed Feb. 26, 1860) professes to be an amend- ment to the "Act conferring certain powers on towns and cities for school purposes," and that it is technically, substantially and co-nstitu- tionally an amend.ment, we e -Certain no doubt. An amendment is an alteration or cnange of some existin. law. In this case, the Legislature altered or changed the act of 1858, so as to extend and app-ly its provisions to unincorporated as well as incorporated towns and citiKes If this is not strictly an amnrdmLent, wit�lin tLie meaning of the Constitution, it would be difficult to determine what would be. II. plaintiff sues as a corporation, and under sec. 2923 of the Revision, it was sufficient to state or aver, generally, as a legal conclusion, the capacity or relation, without setting out the facts constituting tice same. It was, tnrefore, unnecess,ary to st out t]he manner in whici the city or town district was formed. The presumption is, that it was constituted propo rly, and the legality of acts loading to its croeation cannot, as seems to have been attempted in this instance, be raised by demurrer. III. The law provides that the territory annexed to tne city or town, ior sciool purposes, may constitute a part of the separate district, to be organizcd 'under articles 4 or 5 above cited. The extent of this territory is not limited. Because it contains one or two town- snips, rather th.n one or two square miles, we cannot sayt that the orgalnization is illegal. This matter is left to the voters, and as far as we know, courts cannot control thir aiscretion. From the. confused manner in which this reocrd is before us, it is possible that we may not have apprehended the precise point ruled in the court bclow. As we now see tno case, however, the demurrer should have been overruleLd. Reverse Cd. 165 The District Township of the City of Dubuque v. The County Judge of Dubuque County. 13 Iowa 250 (1862). The facts are sufficiently presented in the opinion of the court. Lowe, J.--A school tax was levied upon the taxable property of Dubi~ecounty, under and by virtue of the provisions of the school law of 1858, from which was collected $4,445.86. Agreeably to the terms of sec. 32, Session Laws of 1858, p. 70, the County Judge divided the one-half of this sum in equal amounts among all the school districts within tihe county. The other half he d ivided among thie school districts in proportion to the number of persoas in each, between the ages of five and twenty-one years. The plaintiff rer:onstrated, and insists that the above act authorizing the distribution of the school tax is in conflict w*ith tne Consti- tution, and therefore void, and that the defendant should have divided the wihole sum in proportion to the number of such persons in each district. This suit was brought to recover the dif- ference between the distribution that was made under the act in question, and the one that should have been made agrecably to the require- ments of tile Constitution. The court below held against the lathintiff, and e same question is submitted to us on the papers without argument from counsel. We suppose that it is sees. 3 and 7 of the second division of Art. ~ of the Constitution, in relation to scJ100 fuds, and school lands, upon which tihe plaintiff relies, as showing the invalidity of the act above reforred to. The first of these sections, that is, sec. 3, defines what shall constitute a perpetual fund for educa- tional purposes, and then concludes witih these words: "The interest of which (meaning ne interest ar sing from permanunt school funiCLd), together witi all rents of tPie unsold laduso, and such other means Tas the General Assembly may pro- vtde, shall~TETnflolably appropriated toT�0 support of tKE common schools, througho- - State ." The expression "and such other means as the General Assembly may provide,' must include, ex vi termini any other fnds than those named vhic the Legislature should authorize to be raised for 166 the support of schools. Under the authority of the aforesaid act of 1858, the county of Dubuque levied and collectcd a school tax of $4,445, for the support of schools in that county. The same act declares how this fund shall be used and distributed, namely, one- half in equal sums among all tilhe districts of the county, the other moiety to be distributed to the districts in proportion to the number of youths between the ages of five and twenty- one. But the seventh section of the 9th Art. of the Constitution above referred to, provides that "the money subject to th~e support and maintenance of coinmmon schools, sihall be cdistri- buted to the districts in proportion to the number of youths between the ages of five and twenty-one years, in such ma.nner as may be pro- vided by the General Assembl," It is impossible for us to perceive how the act of the Legislature referred to can stand witi this provision of the Constitution. They seem to be irreconcilable. The Constitution has ordained one rule, and te General Assembly has adopted and authorized a different rule, for the distribution of the same fu -id. The latter, of course, must yield to tLhe former. In reversing the judgment below, we do so upon the only question raised before us, for- bearing to express any opiniun of the plaintiff's right to recover in this action, against the defendant, or whether his remedy was not against the fhd hilstin te hands of the County Judge, and before distribution. Reversed. Note: For cases prohibiting distinction being made between white and colored children because of ti use f the wi Gords "Tall youths' in section 12 of article 9 of the constitution see Clark v. Board of Directors, 24 Iowa 266 (1868); Smith v. The Directors of the Independent School District of Kookuk, 40 Iowa 518 (1875); Dove v. The Indepen- dent School District of IKeokuk, 41 Iowa 689 (1875). 1 :* * * ) 167 Chapter XXI 1M.iscellaneous Section 1. Justices of the Peace Younker v. Susong. 173 Iowa 663, 667, 668-669 (1916). Mr. Justice Preston (u7holding as constitutional the iunicipal Court Act): 7 ... . There are five points relied upon by appellants: (1) That the statute creating municipal courts is unconstitutional because of its provi- sions in abolishing justice courts, the claim being that the justice court in Iowa is a court created by the Constitution and may not be abolish- ed by the legislature.. . . In article 11, Section 1, of the Constitution of this state, under the head of "Miscellaneous", we find the following: "The jurisdiction of justices of the peace shall extend to all civil cases (except cases in chancery, and cases where the question of title to real estate may arise), vwhere the amount in controversy does not exceed one hundred dollars, and by the consent of parties may be extended to any amount not exceeding three hundred dollars." It is doubtless true, as contended by appel- lants, that citizens of the state have the right to invoke the jurisdiction of justices of the peace in the settlement of their controversies within the limits provided; that is, they may do this so lonrg as such courts are in existence. The office of justice of the peace was in fact created by the legislature. Article 11, Section 1, before referred to, is nothing more than a limita- tion upon the power of the legislature, in creating the office of justice of the peace, to fix its jurisdiction as to the amount involved in contro- versy. In the absence of further restriction in the Constitution, the legislature has authority to create any court it may desire. In Article 5, Section i, of the Constitution, entitled "Judicial Department", it is provided: 168 "The judicial power shall be vested in a Supreme Court, district court, and such other courts, inferior to the Supreme Court, as the general assembly may, from time to time, estab- lish." Under tiis, the creation and organization of courts inferior to the Supreme Court, other than the district court, are left to the discre- tion of the legislature. There is no li itation upon the power of the legislature to create any court that it may desire, except the Supreme and district courts mentioned thorein. Justices of the peace and their office, not being of constitutional creation, miiay be established or abolished at the will of the legislature. Crozier v. Lyons, 72 Iowa 401; State ex rel. Thomas v. Gunter- (Ala.) 54 So. 2823. U-e think that only the Supree Court and district court are created by the Constitution, and other courts not specifically provided for in such constitu- tional provisions are, and may be, created by the legislature under the phrase, and -such other courts, inferior to the Supreme Court, as the general assembly may, from time to time, cstablish." The Rmunicipal court act in question should not be held unconstitutional unless it is cle rly, plainly and palpably" so. Burliton, C. R. & N. R. Co. v. Dey, 82 Iowa 312; State v. FaItmont Creamery Co. of Neb., 153 Iowa 702; Lewis' Sutherland Statutory Construction, Sees. 82 and 83 (2d Ed.. 17e are of the opinion that the act is not unconstitutioinal . . ," (Evans, C. J., Deemor and Salinger, JJ., dissented as to the right of ~[omen to vote in a municipal election upon the question whether a Miunicipal Court should be establishod. Evans, C. J., 1nd Salinger, J., filed opinions.) 169 Section Z. Indebtedness of Political Corporations a. W hat Constitutes Indebtedness Aetna Life Ins. Co. v. Lyon County. 44 Fed. 329, 342-344 (1890). Shiras, Ji (Holding valid refunding bonds issued by an Iowa c*ounty in an amount exceeding the con- stitutional limitation on the indebtedness of counties and other municipalities): " . . It no less clearly appears that the issue of bonds negotiated by B. L. Richards on behalf of the county, being in amount 4120,000, exceeded largely the constitutional limitation of 5 per cent. upon the valuation of the taxable property in the county, as shown by the last preceding state and county tax-lists. If tilis issue of bonds had been negotiated in the purchase of, property then acquired, or for thc erection of county buildings or other like purpose, so t�lat thereby a new or original indebtedness had been thereby created against the county, there could then be no question that the bonds themselves would be void by reason of the provision of the constitution of the -state of Iowa, limiting the indebtedness of all municipal and political cor- porations within t e ,state to 5 per cent. upon the taxable valuation of the property within the limits of the particular corporation, and a re- covery thecreon could not be had, even in favor of parties who had paid full value thorefor in the belief that the bonds were valid. Buchanan V. Litchfield, 12 U.S. 278; Dixon Co. v. Fiel, 11 U.S. 83, 4 Sup. Ct& Rep. 315; Lake Co. v. Rollins 130 U.S. 662; 9 Sup. Ct. Rep. 651; Lake Co. v. Graham, 130 U.S. 674, 9 Sup. Ct. Rep. 654. The bonds in question were not issued for any such purpose but were issued for the purpose of refunding other outstanding bonds of the cqunty; and the issuance thereof did not in face increase the indebtedness of the county, but only chanlged the form or evidence of indebtedness. Under those circumstances, it is broadly claimed on behalf of plaintiff that the bonds, being issued to refund or pay other bonds, are not affected by the consti- tutional limitation. 170 To the extent of holding that, as applied to a series of refunding bonds, the mere fact that the amount thereof might exceed 5 Cper cent. of the then taxable valuation of the pro- perty within the county, as shown by the tax-lists, would not necessarily show that the bonds so issued were invalid, I can agree in the views of counsel for plaintiff. If a county owes a valid and enforceable indebtedness, refunc ing bonds, issued under authority of an act of the legislaturc for the purpose of taking up such enforceable indebtedness, are not invalid because they may exceed the 5 per cent. limiita- tion. In suci case the refunding bons are valid, because they roprsent a valid indebtedy neSS. Railroad Co. v. County of 0scoola, 45 Iowa, 168; Austin v. District Tp. o f lony, 51 Iowa, 102. In sus, there ore, upon reIni bonds representing prior indebtedLness, it is necessary, in order to sustain the defense o20 invalicit , to show that the indebtedness merged in anad represented by te Ifunding bo 1ds was itself invalid and non-eniorcecable, either in whole or in part, and, in t.e present case, both parties have introduced evidenco on this issue. On behalf of laintiff, it is claimed that the representations made by B. L. Richards, the accredited agent of tne county, to tne effect that all the indebtedness propose6 to be refunded by means of the issuance of trhe series of bonds which were negotiatoc by him to plaintiff and others had been reduced to judgment, ane then bonded, ostops tue county from howving the con- trary. I do not think the statements imad6Le by Richards come wit in the principle contn-dcd for. When those bon.ds Vwei(e offered to t J. plaintiff, it was known to the parties acting for the plaintiff that the series of bonds pro- posed. to be negotiated e~ceeded in amount 5 per cent. of the taxable property in the county, and tUerefore, to authorize the issuaJce thereof, there must be .then in existence a valid ind.ebtc6ess to the amnount of $120,000 which it was proposed to refund by the issuance of the bonds in question. The validity of the bonds wa~ asserted upon Le claim that the bonds to be refunded represented claims that had been reduced to judgment, and therefore were enforceable against the county. The pur- chasers knew, and were bound to know, th�at, unless this assertion was true, the bonds woul6 be invalid, because in ecc&sE of thue constitutional limitation, and the purchasers were bound to ascertain whiat 171 the fact in this particular was. The bonds themselves contain no recital on the subject. The certified copy of the proceedings taken by the board of supervisors in regard to the issuance of thei bonds, and which copy was sub- mitted to the purchasers, does not ceitain any statement showing that the bonds proposed to be refunded were based wholly upon prior judg- m1nts. TI-e tatement relied upon as an estop- pel was made by Richards first orally, an - then in t 0e form of an affidavit; but e was not then acting on behalf of the county in ascertain- ing or certifying to a fact which tie law re- quired to be trnen ascertained and det ermined as the basis for further action. He was the refund- ing agent of tiie county, but he aid not nave the power to determine any question or matter per- taining to the rigit to issue tie bonds. Dixon Co. v. Field, 111 U.S. 83, 4 Sup. Ct. Rep.J 1Y aviess Co. - v. Dickinson, 117 U.S. 657, 6 Sup. t-- Rep. 89.7. The reso-ut ion of t1e board of supervisors appointing Richarcs declares the object oi the appointment to be 'for the- purpos of funding and refunding the county indebtedness, amnd the resolutions adopted by the boardL uner date of April 10, 1884, snow upon their face that it was the purpose of the board to undertake the bonding of tihe floating i andebtcduess, as well as the refunding the then outst andinis bonded indebt e ane ss. Upon the question of what the bonds proposed to be'refunided wore the rupreseutative, and whether the same were based upon judgments pre- viously rendered against the county, the records of the county constituted the pri mary and best evidence. Richards had no charge over or con- nection with tese records, nor was he tihe one to whom application would naturally be made by, one seeking- to know the origin an-c purpose of the outstanding bonded indebtedness of the county. If the effect of an estoppel is iven to statemcents of this. character, the protection intended to be secured by tie constitutional provision limiting the amount of indebtedness of countis and other municipal corporations would be wholly destroyed. In overy instance it could be evaded by the simple device of appointing a refunding agent, and by his statements create an estoppel against the county or city, and thus validate any. ount 172 of bonds that might be issued, I hold, there- fore, that tIhe representations made by Richards do not operate as an estoppel against the county, but ti-at it is open to the county to show that t-he, bonds merged into tihe refuing bonds sold by Richards were in whole or in part invalid and non-enforceable. . " Durant v. Iowa County. 1 hoolworth 69; 8 Fed. Cas. 117 (1864). hMr. Justice IvMillcr (iolding, that intiest coupons attachied. to bonds do not fori- a part of the principal debt wa ich is lilmited by the constitution): The demurrer to the first plea must be sus- tained. The real debt incurred t by the county was the principal sum naimed in tue bonds. The coupons attacied to the bondds were promrises to pay the annual instalments of interest. Their form, and the fact that they migcht be detached from the principal obligation, do not chan4e their charactcr. They co not form part of the debt, any more' than woula proviSion l ior eres yet to accrue incorDorated in tie 'oody oi the bond.. If the d efendant'L counsel were correct in his position, the bonds when issued were legal, because it is not pretended that the amount se- cured by them exceece, the 5 per centum of the value of the ta able p roperty in the county; but by lapse of time, as the interest has come due and remained unpaid, they ana their incidents, the cou ons, have become illegal. � The absurdity is manifest. The section of the constitution reliedC on, by its terms refers us to tLi time when the bonds were issued to determine whether their amrunt excceds the limit prescribted in it. There is no pretence for saying that the interest thuereafter to accrue vas a debt wT1titin the meaning of the section. Swanson v. The City of Ottumwa. 118 Iowa 161, 172-175 (1902). lr. Justice Weaver (holding that a city expressly authorized by statute may levy a special tax for a public purpose and pledge te same for a series of years and that if, in a cocntract for public improvement for which the tax is levied, the city limits its liability to the duty of levying and collecting the tax, no municipal debt is incurred within the meaning of the constitution): ".1 o. The extent to which it has been held that cities may assume T"obligationsl without incurring "debt" within the meaning of the constitution may be seen by reference to a few illustrative cases. In Lively v. City of Cedar Falls, 27 Iowa, 227, we held that, if a city has the means in its treasury to meet its indebted- ness, the issuance of warrants in excess of the five per cent. limit is not a violation of the constitutional prohibition. Going a step farther, it has been held that a city may ".anticipate" the collection of taxes, and in defraying ordinary expenses may make appropriations and incur valid obligations to pay " in advance of the receipt of its revenues," even though the treasury be empty, andL the city be otherwise i1ndebted to the ful li- mit. Grant v. City of Davenport, 36 Iowa, 396. arra s issued in an icipation of the revenue do not come within the constitutiolal restriction, notwithstanding the revenue implie dly pledgd to their payment is wrongfully diverted to other uses. Phillips v. Reed, 107 Iowa, 331; City of Cedar Rapids v. B;chtel, 110 Iowa, 198. A city may enter into a valid contract covering a long term of years for water, lights, andL other similar ex- penses, agroeing to pay tnerefor in installments as furnised, althoun the aggregte oif payments, thus to be maCe is largely in excess eI the five per cent. limit; the explanation assinecLd for this olding bei n tKhat the debt for ach year is not to be considered. as accruing until the service for that year has been rendered. Grant v. City of Davenport, supra; McBean v. City of Fresno, 112 Cal. 159 44 ac. Rep. 358, 31 L.R.A. 794, 53 Am. St. Raep. 191; Saleno v. City ofi ITeosho, 127 L o. 627, 30 S.:,. Rep. 190, 27 L.R.A. 769, 48 Am. St. Rep. 653; City of Valparaiso v. Gardner, 97 Ind. i, 49 iAm. Rep. 416. Salaries of public 174 officers, court expenses, and other money obli- ga tions imposed upon municipalities by tn constitution or b sttute are not rnicercd uncollectiblk by reason of a general indebtedness to the constitutional liit. Lewis v. idbCr, 00 C- 1 12 c --1 23 u--tl. 99 Cal. 412, 3iPIc. Rep. 1128; Rauch v. Chapman, 16 1ash. 568, 4 8 Pac. RPo. 25, 6 L.R.1. 407, 58 Am . St. Rep. 52; Grant Co. v. L Co, 0 17 Or. 453, 21 Pac. nep. 447. The same doctrine is imp liedly indorse by ti oi c.rt I a ico in Grant v. Cit- of Dgvenor s aj0pra. A contrery viw indiccated in People v. 11ay, 9 Colo. 98 (10 Pac. Rep. 641), but t- same court has so far departed from its rule of str i ct c,.struction as tc hold that a county idndebtec to 1e fucll constitutional limit may lawfully assigni its annual revenue accruing from uncollected taes, provided such assignmenLts ar not in excess of hi ei annual levy. pieople v , 9 Cole. 404 (12 Pae. Rop 838). T'hi r;l also prevails in Illinois, wiere the court is disposeCd to c.nstru ihe restriction upon indebtecdnecss ory strictly aginst all minii- cipal cororation. It is thero ie, in fiect, that city warrants issued in aticiia tion of its revenues arc to be treated as assis aint to the holder. It is further held that ti. holder of such warrants assumes the risk of t- taxes orovino sifficient for their pLayme-t, an. tLatU suck instruments do not L re-present c ny rmunicipal debt. City. f Springfieldc v. Edwars, 84 ill. 632. In Dively v. City of GCodar alls, 27 Iowa, 227, tis court sai: "lf A should uindertakoe to build a courtiouse within three yeTrs, doiCLg so much; and to be -paid accordinly, eacc"h year, the obligation of thc con:itract would a1ris when execu- toed, but the indebtdncss, under the c)nistitution, wuld be measured by tihct to be paid each y ar.". The ,oint thus illustrated not bein-g eirecty involved in tLtat easo, t.e l. .uo quoted has since boon called "pure dictumco' indsor v. Ciy of Des Mhoincs, 110 Iowa, 188. The principle announced in ti e dictum just quotecd is approved by the suprrc court cf California as good law. In an action upon a contract ior theC buildin; of a courthouse the county souit to avoid liability on the ground that the centract price of the work was in excess of the revenue for the year in which the contract was made, and thoroore in violation of tile constitution prohibiti n sucL incebtainess. The court refused to sust.ain tis objection, and hold that tue contract did not, at the time ci the 175 execution thereof, create any liability, but the debt was one which arose from year to year in separate amounts. SnIilie v. Fresno Co., 112 Cal. 311, 44 Pac. Rep. 556. See, also, 1 Dillon, Municipal Corporation (3d Ed.) 135, and VWeston v. City of Syracuse, 17 N. Y. 110. There are yet other obligations more analogous to the contract in the present case, which are usually held not to create municipal indebtedniess in the constitutional sense of the term. Among these are contracts for the construction of sewers, street improvermients, and other works, the expense of which is by special assessment laid upon certain specific property or districts supposed to receive special benefits from the work so performed. In such cases, though the money may be payable through the general treasury, and thouh the city may have issued certificates, warran-ts, or bonds therefor, yet, if the contract be such that its nonpayment will not justify a judgment against the city, or the enforcement of a charge g a inst its assets, or a resort to general taxation, it does not create an indebtedness of the city. Quill v. City of Indianaolis, 124 Ind. 292, 23 N.. E. Rep. 788, 7 L. R. A. 681; Davis v. Ciy of Des oines, 71 Iowa, 500; City of Clinton v. Walliker, 98 Iowa, 655; Baker v. City of Seattle 2 , csh. 576, 27 Pac. Rep. 462. In connection with these special assessment cases it may also be remarked that we have lately held the city liable generally to the contractor for a failure to make proper special assessments for the work done, and that the liability thus incurred is not affected by the constitutional limiatation. Ft. Dodge Electric Light and ,wer Co.v. City of Ft. DoAde, 115 Iowa, 568. But the doctrine that an obligation payable out of a special fund, and not enforceble against the municipality generally, is not a municipal indebtedness within the meani of the constitutional limitation, has not been confined to the imatter of special assessments. It is true there are many cases in which, notwithstanding the creation of a special fund for the payient of the claim, the courts have held the contracts void, as being in violation of the constitution; but, as we shall hereinafter see, these holdings a-e largely based upon the fact that, notwithstanding such special 176 fund, the contracts have been so fra.med as to provide also for a general liability upon the part of the city. Illustrative of this state- ment we may cite Read v. Atlantic City, 49 N. J. Law, 558 (9 Atl. Rep. 759.1) Under a law of New Jersey a city had no power to incur indebtedness in excess of 35,000. Atlantic City having undertaken to make iimproveiments in excess of the limitation and in excess of the cur:rent revenues, the contract was held void. In pronouncing the lav of the case, the court, after referring to the authorities, proceeds: "'It is impossible, perhaps, to reconcile all these cases. The true interpretation of such restrictions upon iunici- pal indebtedness is, in my judgment, between the extremes they exhibit. The plain object of such restriction is to require that all moneys which are paid for municipal ex enses after the debt has reached the fixed limit shall be raised by taxation. In viewu of the object, it is clear (and all the cases agree in this) that prohibitions are not to be construed as li2m ited to obligations which are debts eo nomine, but are to be exte-nded to all contracts for the payment of m oney, or contracts ..whereon the payment of money can be enforced; but where the ~noey to be paid upon- such contract is provided for to be raised under son-e fixed and definite scheme, such contracts are not, in rmiy judgient, within the pro'ibition. . . . Note: But coipare City of Ottunvwa, Iowa v. City Water Supply Co., 119 Fed. 315 (1902) and City YWater Supply Co. v. City of Ottu wa, 120 Fed. 309 (1903). b. Estoppel Doon Township v. Cum nins. 142 U. S. 366, 376-378; 35 L. Ed. 1044, 1048-1049 (1891). Mr. Justice Gray (holding invalid certain school district bonds as having been issued in violation of the Iowa constitutional limitation upon indebt- edness of political corporations): 177 In the Supreme Court of Iowa, it is settled law that -the constitut ional restriction includes not only mrunicipal1 bonds, but all formis of indebt- edness, except warrants for :.one actually in the treasury, and perhaps contracts for ordinary expenses within the limits of the current revenues. Scott v. Davenport 34 Iowa, 200; locPherson v. Foster 4-35 owa, 48; osher v. Ackley Inderendent 3School1 D ist. 44 Iowa, 122; Council Bluffs v. Stewart 51 Iowa, 35; Kane v. RockR.a ids Indeendent School Dist Iow J 27, 1801. -nd a school district has been iajudged to be a political or municipa corporation within the neaiing of the constitution. se v. olman Dist. Tuwp. 37 IoTwa, 542; os' v. cley Tdpend- ent School Dist. and Kane v. Rock Ranids Inde-oend- ent School Dist. abo e cited. In Scott v. Davenort it was held that after the constitutio-al limit rad been reached, by debts contracted either befo--e or after the con- stitution took effect, no new debts could be contracd, even for -te purpose of crecting public works fromi wlich it was exnected that the city would derive a revenue. In McPherson v. Foster, i-t was held that bonds issued in excess of the constitutional liimit were void, even in the hands of a bona fide purchaser for value, and could not be ratified by the municipality by payment of interest or otherwise. In MIoser v. Ackley Inecnde-o.nt School Dist. it ,was n a held that suc bonds ore void a)ainst a bon fide holder, end that a statute giving a lien on a schoolhouse for mahterials for which such bonds had been given was unconstitutional. In Council Bluffs v. Stewart it was held that uncollected taxes and the levy for the curret year could not be deducted from the outstandin_ debt for the purpose of ascertain- ing the real indebtedness, and that the contrary vieo 'confounds the distinction betwseen an indebt- edness and insolvency. 51 Iowa, 396. The iowa cases cited by the defendant in error fail to support his position, In Austin v. Colony Dist. TvwI., 51 Iowa, 102, the limit in question was not fixed by the constitution, but by a vote of the district. In SiouxC Cityv. Seare, 59 Ioir, 95, the bond held valid was isqued and received in payiecnt and satisfaction of a judgment for a tort, and that judgent was net sh w to i-have been in excess Of the consti- l ? tutional restriction. There the bond took the place of the judgment, and therefore, as observed by the court, did not increase the city's indebt- edness. The case of Sioux City & St. P. R. Co. v. Osceola Count, 45 lowa 168, arose under the statute of Iora of 1872, chap. 174, which pro- vided that a judgment creditor of a municipal corporation, in lieu of an execution aa inst its property, might demand and receive the amount of his judgment and costs in bonds of the cor- poration; and the decision was that bond given by a county under that statute, in paymont of a judgment xEtxKan~s recovered upon a warrant of the corporation, could not be defeated in the hands of a bona fide holder by evidence that the warrant was issued in excess of the constitutional restriction, and that the supervisors of the county fraudulently ormitted to interpose the defense in the action upon the warrant. That decision went upon the ground that, there having been no defense by the supervisors nor inter- position by the taxpayers in the action on the warrant, the purchaser of the bond had the right to presume that there Vwas no defect in the judgment. 45 Iova, 175, 176. In a subsequent case between the semile parties, the county, having given bonds partly in exchange for county warrants and partly in exchange for judgments upon such warrants, all the warrants having been issued in excess of the constitutional limit, and all the bonds having passed out of the hands of their original holders, was restrained by injunction from paying the bonds exchanged for warrants on which no judgment had been recovered, and was permuitted to pay those bonds only given in ex- change for judgments. Appeal was taken from the latter part of the decree only, and the judgment of the Supreme Court of the State, following its former decision between the parties, was confined, in express terms, as well as in legal effect, to "the validity of negotiable bonds of a county, issued in satisfaction of a judgment, in the hands of innocent holders for value." 52 Iowa, 26, 28. The rule there acted on is restricted to such a case in the opinion in Miller v. Nelson, 64 Iowa, 458, 461, and by the adjudication of the same court in a very recent case. Kane v. Rock Rapids Independent School Dist., (lowr/- Jan. 27, 1891. 179 In the case at bar, the new debts did not arise on varrants for money actually in the treasury of the district, or on contr cts for ordinary expensos payable out of its current revenues; and none of the bonds in question were given in payment and satisfaction of judgnents. Nor did the plaintiff buy the bonds for value, in good faith, and without notice of any defect, from one to who they h'ad been sBued by the district. He was himself the person to w'hom they were originally issued by the district, and knew, when he took the first ten bonds, that the district, in issuing them, exceeded the constitutional limit, as appearing by public records of which he was bound to take notice, and thatikh- it intended still further to exceed that limit. Under such circumstances he1 hd no right to rely on the recitals in t5he bonds, even if these could otherwise have any effect as against the plain provision of tihe constitution of the State. By the uniform course of the decisions of the Supreme Court of Iowa, therefore, as well as of this court, he cainnot aintain this action. Judgment rcversed ,and case rel.l.ied to the circuit court with directions. to enter judmient for the defendant. (Mr. Justice Brown filed a dissenting opin- ion in which ,r. Justice Harlan and Mr. Justice Brewer concurred.) Lough v. City of Estherville 122 Iowa 479, 483-485 (1904). Mr. Justice Bishop (holding that there is no personal liability of city officials for a muni- cipal debt, even though it exceeds the constitu- tional limitation, when it has been contracted by -such officials when acting within their juris- diction and for a lawful purpose): 180 " . . . The thought of the petition, if we gather it correctly, is that the defendants having conspired together to fasten a further indebtedness upon the city, notwithstanding it was already indebted to the full constitutional limit, and having accomplished such result by the wrongful and unlawful issuance of -arrants, which, in turn, were nerrged ineto a judgment, and the judgment paid by the proceeds of the bonds issued, and the city having lost the riaht to contest the validity of such bonds, both by rea- son of the lapse of time and the fact that the same have passed into the hands of an innocent holder for value, therefore the defendants should be required, for the benefit of plaintiff and all other taxpayers of the city, to pay into the city treasury a stui of money sufficient to make pay- ment, when presented, of the bonds so issued, principal and interest. The proposition is unique, to say the least. It is fairly presented by the record, however, and is entitled to our deliberate consideration. In proceeding to a conclusion, we are not to lose sight of th-e fact that this is a law action--triable, of course, in the absence of a motion to transfer to the law docket, according to the method of equity actions, but in every essential respect a law action never- theless. Accurately speaking, it is an action in vTwhich a money judgment is sought to be recovered against the defendants, as individuals, on account of acts done by them vwhile acting as fmayor and councilmen of the defendant city, in that, as such officers, they wrongfully and urlawfully created a debt against said city in excess of the consti- tutional limit; the demand for damages being predicated upon the allegation that plaintiff and the other taxpayers of said city will be com- pelled, by taxation, tp pay such debt. That a taxpayer, for himself and others, may sue in equity--proper alle ations bein made--for an injunction to restrain the officers of a municipal corporation fron contracting as indebtedness in excess of the constitutional linlit, has been held repeatedly. VTe need not cite the cases. They are fanmiliar to all. 181 But where a debt has been created notwith- standing the imitation, may the city officials who by their official acts have .Co-r ngly and wrongfully brought about such result be held personally liable for the .amou of such debt; it being conceded that the city will be compelled to pay the same, although it. Ias not vet done so? This is thle question we have to deal with. The demiand for judg-enc-tlt being on behalf of the muni- cipality, we imay dispose of the question as though the action had been instituted and was being prosecuted by the city. That this is pro- per must be manifest, because there can be no ground f;or co)plaint on tie pr _t of a txpayer if there be no right of recovery on the prrt of the city itself. NowT, what is the situation fairly disclosed by the petition? The w.rrants issued as alleged were in payoent of lads tender- ed--that is, donated--to the railway comrpa-ny for depot and sttion grouids. Under sectlion 885 of the Code, cities have the power to purchase or condemi grrounds for such purpose of donation. Before this can be done, however, there nust be a petition to the council, and the question of donation must be submitted to a vote of ..the elec- tors at a secial election called for that pur- pose. Code, section 886. A very familiar princi- ple of la'w authorizes us to presur~me that the provisions of the statute were fairly com..lied wTith. The peition does not ch.allene this pre- sumption. On the contrary, the charge of vronful and unlawful acts has reference solely to the fact ,that .e indebtedness contracted was in excess of the constitutional limiit. Counsel for appellant does not cite any case holding that the mayor and the respective nebrsrs of te council of a city nay be held personally liable in d-.iages because that municipal indebtedness in excess of thie con- stitutional lim-it has been contracted or permitted. He know of no such case, and we canot say that there is anything in re'ason or the spririt of our systor of governmeont tLht diotttes the promulgation of any such rule at our hands. Yhile a violation of the Constitution in the respect in question is to be conderzmed, and the courts should interfere to prevent such violation whenever called upon go to do, yet we are not prepared to adopt the sugges- tion that an action for damages may be resorted to, as affording a proper means o redress, where a violation has been accoriplished. That might be 182 said in a case where there had been T a wanton dissipation of the cor-orate property, or an appropriation of its funds Jithout for~ of justification or excuse, we need not determine, as no such question is here involved. ie have set forth the facts sufficiently to indicate that we have here a case where the ex- penditure was a proper one, and the only ques- tion made has reference to the constitutioncl linitation Now, tle P.rr&nts were issued upon the order of the city council, and the defend- ants gai-: st whoiom judgment is sought were acting in the pre ises as the mayor and eibers o f such city council. So, too, it must be conceded that they were acting within the scope of their juris- diction. It has always been the law that a public officer who acts either in a judicial or legislative capacity cannot be held to respond in damages on account of any act done by him in his official capacity. His act ayR be void as in excess of jurisdiction, or otherwise without authority of law, and he may be subject t6 impeachiment aind renoval from office for corrupt practice, but he cannot be Ymulcted in damages. This conclusion has the support of all the adjudged cases. For a general discussion of the subject, and citation of cases, see Throop on Public Officers, sections 534, 709. Our conclusion is that the judgment was ri ght, and it is AFFIRPID.' Note: Carl H. Erbe, "Constitutional Limitations on indebtedness in Iowa,:, 22 Iova Journl of history and Politics, 363. 183 Section 3. Vacancies in Office State of Iov-a exrel Freenan v. Carvey. 175 Iowa 344, 356-358 (1916). (One Lyon died while in office as county supervisor after having been elected to succeed hinself. Freeman was appointed to fill the i.m-nediate vacancy thus caused. He duly quali- fiod and acted as suporvisor until the end of the terf f office which LyCn was servinG at the time cf his death. One Carvey was appointed to the office to serve the next tern for which Lyon had been elected. He duly qualified and entered up:n the duties of the office. T-,enty- four days after the beinninG of the tern clair.led by Carvey, Free-an made fornal clain to the office in question fron which he now asks the ouster of Carvey.) Mr. Justice Y.feavor. . . "Ioecurrin to the situation of the parties at the time this action was begun, we find the respondent in posession of the -coffice and perforniing its duties. The relator in.stituted this action to oust the res- pondent in his favor, alleging as the basis of his ri.'ht thereto his cW- apointnont to fill the vacancy caused by the death of Lyon, who was at that tine the lsful incunbent for the ter a to expire in the followine January .nd -was also the re-elected candidato, wh': would have been en- titled to the position for the next torn , had he lived and qualified thcrefcr, as required by low. By virtue f that nop ient and the qualific-ation and the appointent nade therunirhder on the day of his appoi nTt and without qualifying anew as a holdover, he challcnLs the riht of the present incunbent of the office. Such being his attitude, we think it clear, b;th upon principle and precedent, as well as upon strtutory grounds, that he has failed to make a case entitling him to:, a judgment of ouster cinst the respndont. As we hayve alzeady said, te only vacancy exist- ing in the office at thile tie of his appointment was that created by the death of the incubent. The deceased was then the incumbent cf the office for the tern ending the second secular day of January, 1915, and the vacancy so created could not be of longer duration. A vacancy in the office for :the next ter: could only be brcught 184 to pass r exist wnhe the lhour for entrance there- on arrived, and no duly qualified pcarso-n appeared to take ossession or t as su.O its functions by virtue f an election or .ppoinrment thereto, or as an inc unent entitled t_ hold over upon failure of a successcr to qualify. It is true that cases are found and cited t, us to the effect that anll appointment thus made continues with unimoaired force and effect over the entire period fr. -1 its date tmtil the next general election, even thougi the tern which the deceased incumbent was servin (t the time of his deth shou.ld Ianwhile expire; but s- far as we have been able to examine these precedents, not one of thenr- involves, as does this case, the effect of a statute which defines a vacancy and points out specifically when. it may be said to exist, or of a statut which requires a holdover to qualify anew, and declares that, upon failure to conply with this requirement, the office shall becoUno vacant. H lcding, as we do, thJt wherever, by Costitution or by statute, an incunibent is entitled tr hold over beyond his stated term, if, at the end thereof, there is no qualified successor, the deth of an incun- bent can create n o v acanbc boy!nd the end of his current term, we ar unablo to follow. the lead of th:e -oproendents upo n 1whic'_ a~,pellee relies. The res.ult is thelefore iiovitable tbat, by his appointent t- the vacancy, relator becane the rightful incu-bent of te office until the sec nd socular day of January, and as such incunmbent, he becean entitled, under the Con sti- tution and stctute, to hold over until the next general election. But he could, by his ,.own act or neglect, l:'ose that right and suffer the office to bec::, e vacant by faili, to qualify anew. The crnstitutiohal 2rovision is-nc t in- consistent -it. the ut .h rity of the legislature to d ,efie a vaca.ncy r to prescribe and regulate the cana Or :of qualifying -for office. It was the relat.orts duty to qualify ane, The ten days in which this i i t have been done had expired before this action wa:-s brought. By this filure 185 the office became vacant. Code Section 1266. Upon is concession as t, the facts, he failed to show good title to the office in himself. This being the record, then, upon his own theory of the vital legol proposition in the case, and upon w hat we believe the better and greater - weight of the authorities, the judgment of ouster in ihis favor cannot be pDermitted to stand. We are cited to the case of State v. Browi-n, 144 IOwa 739, as holding that it is iriaterial whether an appointee holding over qualifies anew. Such holdiig r such suggestion is not there found. The relator th'eroe had never been appointed to fill the vacancy. He had siiply been designated by the court, which had no power of appointment, to perform the duties of clerk until an appointment could be regularly made by the board of supervisors, and we hold that he acquired no right of holdover, and it did not lie i.n his nouth to question the valid- ity of the act of the board in filling the place by appointment. This fnakes it unnecessary to enter upon discussion of the regularity or validity of the act of the appointing board in selecting the respondent to fill the office, For the reasons stated, th.e judgment below will be reversed and cause renanded, with directions to the district court to enter judg ent in harmony with the views here expressed.--Reversed. Note: See Richnan v. Letts, 202 Iowa 973 (1926); 12 Iovwa Law Review, 203. * * * * * * 186 ADDENDUM For a general discussion of the militia of Iow a see Carl H. Erbe, "'The Militia Under the Constitution of Iowa, 24 Iowa Journal of History and Politics, 270. * This book is a preservation facsimile produced for the University of Illinois, Urbana-Champaign. It is made in compliance with copyright law and produced on acid-free archival 60# book weight paper which meets the requirements of ANSI/NISO Z39.48-1992 (permanence of paper). Preservation facsimile printing and binding by Northern Micrographics Brookhaven Bindery La Crosse, Wisconsin 2012