dissenting. I do not believe that tbe foregoing opinion contains tbe law as applicable to these cases, and therefore I dissent. In mj view the Chief Justice commits the double error of discussing questions really not made by the record, and then misconstruing the law as applied to those questions.
The instruments sued on are of the tenor following:
“ $1000. OEEICE OB' CouNTY JUDGE,
Marshall County, Iowa,
,T ^ '
“ By authority of the statutes of the State of Iowa, for *164value received, I, William C. Smith, County Judge of said county, do hereby pledge the faith of said County of Marshall to the payment of the sum of one thousand dollars to William Dishon or order, in twelve months from this date, with interest at the rate of ten per centum per annum, payable annually, at the office of the County Treasurer of said county as per coupons hereto attached; and by virtue of said authority, the County Treasurer of said Marshall county, is *165hereby authorized, directed and required to pay to the legal holder of this bond at its maturity, the said sum of one thous- and dollars, together with the coupons hereto attached, as the same fall due. In witness whereof, I have hereunto set my hand as County Judge, and affixed the seal of said county, at Marietta this fourteenth day of January, A. D. 1859.
[Seal.] William C. Smith,
County Judge.”
*166And this coupon:
CoupoN. No. 1.
Marshall County Iowa Bonds.
The Treasurer of said county will pay to bearer one hundred dollars, on the 14th day of January, A. D. 1860, being the interest due that day on No. 25, payable to William Dishon or order.
William C. Smith,
County Judge.”
*167In one of the cases, there is a count which attempts to set out the consideration and facts leading to the execution of. the bond, and another which declares upon it, as an instrument in writing made by the county, which was duly assigned by the payee to plaintiffs before maturity. In the other case there are six counts, being in form like those found in the books under the common law practice, on promissory notes. The demurrer in each case reaches the whole petition, and is not to each count separately. If either count was good, therefore, the demurrer should have been overruled. (Darr v. Lilley, 11 Iowa, 4, and cases there cited.) And I can find no precedent for assuming a state of facts stated in one count of a petition, to be applicable to another and different one, and predicating thereon an argument against the sufficiency of both or all. Then again, for any thing that I can know in a judicial manner, the bonds in the one case were issued for a' consideraton other and distinct from that stated in the other.
Not only so, but it is admitted that these bonds were assigned for a valuable consideration, bona fide, to the plaintiffs before maturity. In other words, it is admitted by the demurrer that plaintiffs are innocent holders of this paper. Being such, the question of consideration is entirely immaterial. However invalid the bonds might be in the hands of Dishon, for the want or failure of consideration, plaintiffs are not affected thereby. The contract being in writing, a consideration is presumed, and of course the pleader is not required to aver it.
Plaintiffs must recover, therefore, unless the bonds upon their face are invalid, or what amounts to the same thing in this inquiry, unless under the law the county judge had no power to issue this character of paper.
In the first place, I maintain that from this record it does not appear whether these bonds were issued with or *168without a vote of the people, as provided for in §§ 114 and 115 of the Code of 1851. If a vote was necessary, then I am bound to presume, in the absence of a contrary showing, that it was had. If it was not necessary, then of course the pleader need not state the authority. For if the power existed by the general law, the pleader is not required to set it forth. If the power could only be conferred by a vote, “ the pleader may assume the needful circumstances until the contrary is pleaded.” (Ring v. Johnson County, 6 Iowa, 265.) This was held in a case where the law clearly required that a vote should be taken. That this ease settles the question, where it does not appear that the law required a vote, I think is beyond controversy.
But let us assume that these bonds were issued to Dishon under a contract entered into by him to build a court house ; that there was no vote of the people, and that they were issued before he did the work. And still I maintain that the demurrer should have been overruled. To begin with, plaintiffs had no notice of any of these matters, and this ought to be conclusive of the question. But waiving this ground, impregnable as it is, I say that a vote of the people was not necessary, and that the county judge had the power to make the contract, whatever the popular will. Be it ' understood that I am not discussing the policy of the law: I have nothing to do with the fact that corrupt county judges abused that power, that it would have been better to require a vote, or in some manner to have guarded the authority conferred. I have no doubt that in some instances the power was grossly abused; but such abuses are more or less incident to the exercise of all powers where a large discretion is conferred, and it may be very impolitic, therefore, to thus legislate. But this is no reason why I should set aside a contract, made by the judge, in the absence of fraud, and thus violate well settled legal principles, to get around and obviate the effect of unwise legislation.
*169Now, tbe powers of thé county judge are to be ’measuréd by the statute it is claimed and admitted. By this he is invested with the usual powers and jurisdiction of county commissioners. He is the accounting officer and general agent of the county, and as such is authorized to take the management of all county business; the care and custody of all county property; to superintend the fiscal concerns of the county, and secure their management in the best manner; to provide necessary rooms for his office and those of the treasurer and clerk, and for the District Court. Contracts made by the county, which are to be formally executed, are to be in the name of the county, and executed by the county judge in his official capacity. (Code of 1851, §§ 105-6 and 108.) If there is no regular court house, it is the duty of the county court to provide a place for holding the District Court. (§ 1573.)
By the law of 1848, (act of February 15, § 4,) power was possessed by the county commissioners to contract for the erection of a court house, and other necessary public buildings for the use of their county. And as the usual powers and jurisdiction of that board are conferred upon the county court, it follows that the power to provide for the erection of a court house is included. And so it was expressly held in Brooks v. Napier, County Judge, 7 Iowa, 425. The majority opinion “apprehends that there is no necessary conflict between that case and this.” And yet I maintain that the case in 7th Iowa is, in principle, decisive of the very question now under discussion and in accordance with the position which I assume. Thus, it is expressly held that: “The county judge may enter into contracts for the erection of such buildings, (court house, jail, &c.,) binding the county thereby, without first submitting to a vote of the people of the county, the question of their adoption, or the propriety of incurring the expenditure of money necessarily involved in them.” “ There is no provision however, under *170which the county judge may be required to submit to a vote of the people of his county, the question of building a court house, or the adoption of a plan on which he proposes to build it. The county may be in debt, and its warrants depreciated; the court house proposed to be built, as to the plan and cost of the same, may be altogether unsuited to the wants and to the means of the county; and yet, if the county judge chooses to contract for its erection, so far as we are able to discover, there is no limit to his discretion, and no means in the hands of the people to defeat it. If the proposed plan is submitted to the people, and is condemned by them, there is nothing to prevent the county judge from entering into the contract, in spite of their vote against it.” And in that case it will be seen, that the county judge was petitioned to submit the question to a popular vote; that he refused, and that the relator applied for a mandamus, the information setting forth among other things, that the county treasury was bankrupt; that it would be necessary to borrow money to carry out the proposed contract; that a majority of the voters thought the proposed building was too large for the wants of the county, and the price proposed an extravagant outlay of money, involving the necessity of borrowing or oppressive taxation. In this case however, there is nothing to show that the building contracted for (if one was, but of which I know nothing,) was too large or too small for the wants of tbe people; whether it was good or bad policy to make said contract; whether the county was in or free from debt; whether the contract could be met and discharged from the ordinary revenue, or whether it involved oppressive taxation; nor, finally, that money would have to be borrowed to carry it out. That the cases are in conflict, I think must be most manifest.
Will it be said that the contract may be made without a popular vote, or in spite of a vote against the one proposed, but that the judge cannot undertake to pay for the work *171done, otherwise than as the work progresses; or in bonds, promises to pay, or warrants due at different times, and that if he does so, such warrants or bonds are invalid? Or is it said in the same connection, that the warrants are void, because they bear ten per cent interest? To all these and similar positions I say, that the power to contract, carries with it necessarily, the power to provide the means to pay for the work to be done. That in this respect the county is like an individual; and as a municipal corporation it may be bound just as the individual. The county judge is the general agent of the county, and as such, is entrusted with the management, of all county business; he superintends the fiscal affairs of the county, and is to secure their management in the best manner possible. Having these general powers, he may do whatever is necessary to carry them out. If he acts indiscreetly or unwisely, the principal (the county) and not third persons, must suffer the consequences. And as to the interest, if more than he could agree to pay, this at the most would not vitate the whole contract, but only pro tanto. Not only so, but the law is, that “ parties” may agree in writing for the payment of interest not exceeding ten cent on the one hundred by the year. (Act of 1853, § 2.) And “parties” as here used extends, in my opinion to bodies politic and corporate. I find nothing that restricts the county from agreeing to pay such interest. The powers conferred upon the county judge are certainly broad and general enough to include this. And I know of no reason why a county judge might not with much propriety, provide for the payment of a portion of county indebtedness at a fature day, instead of making it all due immediately, and in doing so, undertake to pay a higher rate of interest than that recoverable upon the ordinary warrants.
But finally, these instruments are, in their legal substance? nothing more than the ordinary county warrants. They are more formal in their language, and so framed as to be *172negotiated with greater ease and facility in the market. And yet after all, they are but warrants drawn by the proper and legally constituted financial agent of the county upon the county treasury. All that is said about “pledging the faith of the county;” about “the county treasurer being hereby authorized, directed and required to pay,” &c;” about “the authority of the statutes of the State of Iowa,” does not charge their legal character. The county would be bound to pay, if liable, without “pledge of its faith.” And if the power to make the contract was conferred, the recitation that it was done by authority of the statutes could not make the promise more obligatory. Nor would any of these things, nor all of them combined, detract from the otherwise binding efficacy of the bonds.
I dissent for these reasons, and am unhesitatingly of the opinion that the judgments below should be reversed.