dissenting. — As I am unable to concur in the conclusion to which the majority of the court has arrived, that the injunction should have been allowed, it becomes me to state, briefly at least, the ground of my dissent.
In both of the cases, Clapp v. Cedar County, 5 Iowa 15, and Ring v. Johnson County, 6 Iowa 265, the question of the power of counties to subscribe to stock in railway companies, and to issue their bonds therefor, was clearly made. In the first of these cases (page 45,) it is said, in the opinion of the court, that “on the first step in the inquiry, that is, upon the inherent authority of a state to enter into these and similar internal improvements, no one has ventured to make a question. The second step would be, whether a legislature possesses the power to confer this authority upon a county.” This question is not discussed. The opinion proceeds : “The next stage is this, do the counties of this State possess this authority, whether inherently, or by express provision? If we were called upon to decide the question now for the first time, for this State, we should entertain heavy doubts of the existence of the power, upon any grounds, and if the attempt were made to place it upon section 114 of the Code, under the power to aid in constructing roads, we should think very *182lightly of the argument. If the power exists it must have some other foundation. Rut this is a subject on Avhich change is disastrous. It is one on which we are bound by former dicisions. Such an one has been made, and the public and the world have acted upon it.” “It is impossible to recede. The world waits and listens for the judicial determination, and then acts accordingly, and in this case has acted with vigor;” The opinion then refers to the action of the legislature recognizing the exercise of this power by the counties. In the case against the county of Johnson the court refer to the above, and forbear a discussion of the question.
It would not be possible for a judicial opinion to indicate more clearly what would be the view of the court, if it were untrammeled by previous dicisions and legislative action, and were free to express its own opinion. So far as regards the existence of the power, true, under the law as it now is, I agree with the Chief Justice and have so agreed from the time the first case was presented.
But the decision of the above cases was placed upon the ground that previous adjudication had declared, and repeated legislation had recognized the existence of the power. Admitting the truth that courts, as well as individuals, might differ in opinion, we conceive that this was a subject on which the highest detriment might be wrought, both to the people of the State at large, and to the individuals and bodies concerned, by a fluctuation of opinion in the courts; and regarding the fact that companies and individuals had committed themselves to a very great extent, putting faith in the previous adjudications and legislation, we (the majority of the court,) conceive ourselves bound by as high considerations as can well be addressed to a court, to stand by past decisions. I feel myself justified by these considerations and still hold to them.
And this is the ground upon which the above decisions are placed, and the only ground. No argument is drawn from the circumstance that the bonds had been issued, or that they *183were in tbe bands of bona fide purchasers. No argument, I mean, bearing on the greater question of the power of the county, or of the validity of the bonds. The bona fides of the holders title has, it is true, some influence upon the question of what defenses may be made, but this is unimportant in connection with the present considerations.
The opinion of Justice StooictoN, concurring with the Chief Justice in the position that the counties do not possess the power in question, holds that the issuance of the bonds may be resisted and prohibited when the application therefor is made before they have been uttered.' This opinion stands upon the want of authority, in fact, in the c'ounty, and still recognizes the former decisions where the bonds had been uttered and were in the hands of innocent holders.
With this opinion I am not able to concur, because, if there\ is a want of authority I can not distinguish between the \ cases where the bonds have been, and where they have not i been issued. The lack of authority to create them goes to ‘ the foundation of any considerations concerning them. _ If there is no power, the vote and the bonds are equally void, ; —equally nullities. The vote, in such case, has no virtue to \ support a bond which has gone out to a third person, any more than one which has not yet gone out. If the defect were in some informality, or in some steps of the proceeding i to obtain a vote, it may well be regarded as cured when the obligation has been sent out to the world. But a want of power to vote, of authority to make obligation, is incurable; no matter when it is shown, or in whose hands the bond .may be. The bona fides of a purchase, and the innocency of a holder cannot create a power.
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• In respect to the case of Lee County, 6 Iowa 304 and 391, I have at all times regarded it as a case of legalizing the vote against informalities, and not as touching the fundamental point of authority.. The act there in question (Acts 1857, page 447) uses the terms “ all votes in Lee and Davis counties, in the form of a joint or several proposition, fyc.fi and the county is forbidden to plead that the bonds are *184“ irregular or invalid in consequence of the informalities caused by this Act.’ ” ' And again, the bonds issued were to be held valid, &c., “ notwithstanding any informality or irregularity in the submission of the question to the vote of the people.”
In my opinion in the above case, (6 Iowa 305-30,) I say that “ the question now made is, whether the legislature could cure the evils existing in the former submission to any vote by the people of Lee county.” The question of power is passed by, and the opinion says : “we understand this question to have been settled in the case of Clapp v. Cedar County.” Then the opinion proceeds, “the power having been conferred, can the General Assembly cure any defects in the exercise of it?” “If this exercise of authority were held to be unconstitutional, then it would follow that the legislature could not render the case valid. But inasmuch as that body can confer the authority, and has conferred it, we conceive that the same body may remedy a defect in the exercise of it.”
The opinion of the Chief Justice in the same case (6 Iowa 393) views the question in the same light, that is, as one concerning the power of the legislature to cure a defect, or remedy an irregularity.
If the fact that the bonds have been issued and sold, and have gone into the hands of innocent purchasers whose money has gone .to the county and been expended for its benefit, has weight, and may be urged on the one side; then it would seem that, on the other, the contrary might be shown, namely, that the money had not been so used, in those cases where the road has not been built. Where it has been so applied, it is true that justice and equity would forbid the county pleading a want of authority; but this is in the moral sense, and it does not follow that the law will forbid it, for however bad the morals in pleading it, the bonds are nevertheless absolutely void. In conclusion, I am not able’ to concur in saying, that because the objection is made in limine, or before the bonds are issued, therefore there is no authority in *185the county to utter them; whilst after they have gone forth, that power exists. They rest on the same vote in both cases.
The weight of the argument, drawn from former decisions and legislation, presented in the case against Cedar county, has been inconceivably strengthened by that and the subsequent cases, and I regard it as my duty in this, more than any other case that has ever come before me stare decisis. Therefor, in my opinion the induction should be dissolved.