This is written as a special concurrence with the opinion filed in this case.
At the outset, the facts of this case show that the plaintiff-appellant is, as its name implies, a light and power company; that it at one time purchased of the then holder the right to operate a light plant in the town of Grand Junction; that its franchise expired by its very terms, and the plaintiff held on and operated its plant in the town for years thereafter. That for some reason or other the town desired to make a change, and attempted to enter into the contract in question herein, with Fairbanks Morse Co. Thereupon, the plaintiff-appellant brought an action in 1932 to enjoin the town carrying out such a contract, and declared it void, and commenced such action alleging it was engaged in generating electric light and power and in the distribution thereof to its consumers and patrons in the town of Grand Junction. A cross-petition filed by the town in the case asked that the claimed right of the company to operate in the town be enjoined, as its franchise had expired. In the decree in this case, this court, in 216 Iowa 1301, 250 N.W. 136, enjoined the town from proceeding under the contract, but found for the town on its cross-petition and ordered the plaintiff ousted from the town, and gave it four months in which to remove its system from the streets, alleys, and public places of the town of Grand Junction. *Page 457
Following this the plaintiff, by its vice president, consulted its attorney as to what to do in regard to the ouster order, and its attorney said, "It looks to me it is going to be inevitable that you must remove your distribution system from the town of Grand Junction." He further said, "you could own some property," and, when asked what would he suggest, he said, "If you expect to avail yourselves of the fruits of your victory you will have to be a taxpayer in the town," and that was what a lot was bought for, so it could continue to be a taxpayer. The purchase of this lot was on the advice of the attorney, so the lot was purchased simply, solely, and only in order that the plaintiff might remain a taxpayer; that it might still have power to bedevil the town. In other words it was putting itself in the position to say in effect, "You won't let us longer furnish electricity to you, we will do everything we can to see nobody else does." It was acting as many public service corporations act, the part of the "dog in the manger" who would neither eat the hay nor allow the horse to eat it. This court cannot afford to sanction such actions. It cannot afford, unless compelled by law, to hold that, in view of these facts, the plaintiff has any right to further continue this litigation. This court in Richman v. Board of Supervisors of Muscatine County, 70 Iowa 627, 26 N.W. 24 and 77 Iowa 513,42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308, had litigation over the assessment for a levee, and in the 70th Iowa case had held the proceedings by which the levee was established was illegal, and in the 77th Iowa opinion held otherwise, after a legalizing act under the same circumstances practically that exist in this case. We cannot afford to go on record as laying down a different rule in this case in favor of public service corporations than that which was laid down as against the farmers of Muscatine Island in the Richman case. We think that case alone is decisive of this case, and will discuss it later.
In the decision in this case as reported in 216 Iowa 1301, on page 1304, 250 N.W. 136, 137, this court said:
"If the contract entered into with Fairbanks Morse Company did not call for a construction of the plant in substantial compliance with the `Town's specifications' there was no competitive bidding. It was simply a new proposition, and if they were materially different from the town's specifications there *Page 458 would be no competitive bidding, and a contract based thereon would be invalid." It said further on in the opinion, page 1308:
"The evidence shows that Fairbanks Morse Company failed to bid upon the town's specifications altogether, and other bidders had no opportunity to and did not bid upon Fairbanks Morse Company's specifications, because no bids had been invited thereon. It is our conclusion that Fairbanks Morse Company's specifications varied so materially from the town's specifications that there was no competitive bidding. The contract was therefore invalid, and plaintiff's application for an injunction should have been sustained."
The effect of these holdings of the court was to declare the contract with Fairbanks Morse Company invalid for the reasons set forth therein; i.e., that there was no competitive bidding. It has been decided many times that what the legislature can authorize it can legalize. The legislature had power to authorize the town to enter into a contract for the building of a light plant without competitive bidding. It could authorize, if it desired, the town to call for bids to furnish plans, specifications, price, etc, for doing the work, and terms of payment, leaving to the town council to select whichever it might see fit. This being true, the legislature can legalize it so upon the decision of this case, after the opinion in the 216th Iowa had been rendered and had gone into final decree, the legislature passed the act legalizing the proceedings. It is contended that section 30, article III of the Constitution, forbids the passage of such an act; second, that after the court has passed upon a matter of this kind and it has been entered in the final decree, the legislature cannot interfere by passing a legalizing act. Each of these contentions is contrary to the law as laid down in the books.
The right of the legislature to pass special acts is not determined by the grant of power so to do. That is not the way you construe state constitutions. The state legislature has all the power of legislation belonging to the old Parliament of England, except as it is forbidden either by the constitution of the United States, or by the constitution of the state. In construing the federal constitution we look to see if there is a grant of power for Congress to legislate. In construing a state constitution we look to see if there is anything forbidding the legislature to act in the premises. Section 30 of article III of the State Constitution *Page 459 recognizes the right of the legislature to enact special laws, except in certain instances, and sets them forth. It also contains the provision that in all other cases where a general law can be made applicable all laws shall be general and of uniform operation throughout the state. It is under this clause that the contention is made herein, that the legislature in passing the legalizing act violated the constitution. The opinion of the district court, we think, was a complete analysis of the fallacy of the contention, and, further, the writer thinks there is no question that Richman v. Board of Supervisors of Muscatine County, 77 Iowa 513, 42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308, controls this action. In that case the supervisors of Muscatine and Louisa counties undertook to build a levee on Muscatine Island, situated partly in one county and partly in another. The boards did not take the proper jurisdictional steps to establish the levee, but proceeded to build it, and then undertook to levy taxes to pay for it. The levying of these taxes was enjoined. In the case in the 70 Iowa 627, 26 N.W. 24, of the same title as the 77th Iowa case, the plaintiffs were identical. After the decision in the 70th Iowa case, enjoining the levying of taxes, the legislature passed a legalizing act, just as here. It was assailed as it is here; it was held that this act was not obnoxious to section 30 of article III, as being a local or special and not a general law. The court in its opinion in the third subdivision of the opinion says:
"The curative act is assailed as being obnoxious to section 30, art. 3, of the constitution, in that it is a local or special law. We regard this as the most doubtful question involved in the entire consideration of the case." It then quotes the provision of the Constitution. Following that, the opinion says: "It cannot be questioned that the curative act is both local and special in its application. Its whole tenor and bearing are to that end. It is in aid of a particular and a local enterprise. It can only be sustained upon the theory that a general law cannot be made applicable." It then says: "Counsel for appellants in argument, ingeniously, by way of illustration, attempt to show that a general law would reach the object. If the mere wording of the law, without regard to legislative purpose, is to be the guide for constitutional interpretation, we have no doubt that it could be effected. But was such the intention of the framers of the *Page 460 constitution? To so hold is to place ourselves in harmony with the often repeated attempts at legislative evasion, when confronted by constitutional law, which we have no desire to do." It further says: "By the curative act it was not only the purpose to provide for the assessment and payment for the improvement, but the validity of the location was questioned; and a principal purpose of the act was to legalize that, and constitute it a public improvement. Its accomplishment under general legislation would be very difficult, if not impossible. The line or route of the levee did not conform to the original plan as a whole, and an effort to legalize it by general legislation would have involved a minuteness of description inconsistent with any other like state of facts, and we may here dispose of the question on the theory, at least, that the act is not so clearly obnoxious to constitutional requirements as to justify an interference by us."
The writer of this opinion thinks the reasoning of the court in this part of the opinion is conclusive, first, that the act in question here is not obnoxious to section 30, article III; second, that even a law passed apparently applicable generally to meet the end would be local and special as in the Richman case, and in this case; and just as the court says, "If the mere wording of the law, without regard to legislative purpose, is to be the guide for constitutional interpretation, we have no doubt that it could be effected."
In the 70th Iowa case the court enjoined the levying of taxes for work that had already been done. In the 77th Iowa case it approved an act legalizing that which had been declared invalid by a decree of this court years before. It held that the farmers of Muscatine Island must pay the taxes for the levee.
The general rule is that where either a special or a general act can be made applicable, the determination of the legislature is conclusive. It is a legislative question into which the courts cannot inquire. 25 R.C.L. 824, discusses this clause, and says:
"The authorities are not entirely in accord as to who shall determine in any particular case whether a general law can be made applicable." It then says: "Probably no authority will deny that the legislature has a sound discretion to decide the question. In other words, the constitution leaves a discretion with the legislature to determine the case in which a special law is necessary" — citing in a note, 93 Am. St. Rep. 107. It then *Page 461 says: "There is a line of decisions comprehending apparently the weight of authority which does not stop here, but holds that the legislature is the sole and exclusive judge in determining when a general law will not subserve the purpose as well as a special or local act and that its conclusion that a special or local statute should be enacted is final and conclusive, and not subject to judicial review. As sometimes expressed, the constitutional prohibition is really not prohibitory, but rather cautionary, to the legislature." And it says further: "The courts of some jurisdictions, however, refuse to concede the finality of the legislative determination in its broad and comprehensive sense, though holding that they are not justified in disturbing a special act of the legislature except where the case is clearly one for a general law" — citing in support of this, among other cases, Richman v. Board of Supervisors, 77 Iowa 513, 42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308; Cooley on Constitutional Limitations, Vol. I, p. 260, which cites State v. Hitchcock,1 Kan. 178, 81 Am. Dec. 503, in which it was held that the constitutional provision, that "in all cases where a general law can be made applicable, no special law shall be enacted", left a discretion with the legislature to determine the cases in which special laws should be passed, and calls attention to a long list of cases so holding.
59 C.J. page 725, under the head of "Statutes," section 313, says:
"Many of the state constitutions provide that no special law may be enacted where a general law can be made applicable. As is elsewhere noted, except where expressly made a judicial question by provision of the constitution the determination of whether a general law may be made applicable is, by the weight of authority, regarded as a legislative question with which the courts will not interfere. Under this view it has been observed that the constitutional provision is in reality not prohibitory but is rather cautionary to the legislature." Examine City of Clinton v. Cedar Rapids M.R.R. Co., 24 Iowa 455.
Lewis-Sutherland Statutory Construction, Vol. 1, 338, section 190 (117 Original Ed.), lays down this rule as to special and general legislation:
"Whether a particular act is conformable or not is a judicial *Page 462 question; that is, the courts have power to determine it, and they will hold any act void which violates either of these regulations, with one exception. This exception is the question whether on a nonenumerated subject, not of a general nature, a general law can be made applicable. It is a conclusive implication, and that judgment is final; the courts will not enter at all upon the inquiry; they will accept the judgment as final; they will accept the judgment of the legislature as exercised within its exclusive legislative domain and give it effect." The note cites 35 cases from the following states: Indiana, Missouri, Colorado, Alabama, Arkansas, California, Illinois, Pennsylvania, Kansas, North Dakota, Oklahoma; besides a case from the Supreme Court of the United States, and three cases from the Circuit Court of Appeals of the United States. These are all states having similar Constitutions to ours. The state of Missouri in its earlier decisions so held, but the new Constitution was adopted about 1875, expressly making it a judicial question. On account of another provision in its Constitution, South Carolina held it to be a judicial question. I think Iowa should be added to this list of cases in Richman v. Board of Supervisors, 77 Iowa 513, 42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308. The writer thinks that in view of these authorities, and in view of what this court did in the Richman case, that whether or not the act in question was subject to review of the courts, has been decided, and leaves the determination of that question a legislative question with which the courts have no right to interfere.
The fact that this court decided as it did in this case, declaring that for failure to submit separate bids the contract between the town and Fairbanks Morse Company was illegal, is not prohibitive of an act of the legislature to legalize the contract with the town, for it could have provided in the first instance the town could enter into such a contract, without competitive bidding. Having the power so to do, it can legalize the contract entered into without such bidding, and that the decision of the court only makes the necessity of the passing of such an act.
It was held in Richman v. Board of Supervisors, that because of the decision of this court in the 70th Iowa case of the same title, declaring the proceedings invalid, that the legislature had the right to do as it did. This case had been decided years *Page 463 before in this court, and the legislature legalized the acts which were declared invalid in the first decision of the Richman case, and so it has the power to legalize these acts here. There is no claim that if this were a litigation between private parties alone that the legislature could legalize the contract, or could change the effect of the judgment; but in a case where public rights are involved the rule is to the contrary.
So we find the general rule is as stated, that in constitutions similar to ours, a legalizing act, special in its nature, is not affected by the clause as to legislation being general. The legislature itself determines this question, and that is final.
It was early decided in this state in Miners' Bank of Dubuque v. United States, 1 G. Greene, 553, that where the legislature reserves to itself the right to act under certain circumstances, the right to act is to be determined by it. As a corollary to this, where the constitution gives to the legislature the right to act under certain circumstances the same rule would obtain.
It is suggested in this case that section 6 of article I, being the Bill of Rights of the Constitution of this state, reading as follows:
"All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens," forbids the act in question.
It is a very far-fetched argument that tries to bring this general clause from the Bill of Rights into this case as forbidding the act of the legislature attacked here, i.e., the legalizing act. To begin with, this act is not of a general nature; it is only laws of a general nature that shall have uniform operation. The act under question is not a grant to any citizen or class of citizens of privileges or immunities which upon the same terms shall equally belong to all citizens. It is news to the writer that a municipal corporation is a citizen within the meaning of our constitution. A constitution should be construed as a whole, just like a statute. The right of the legislature to pass local and special laws, except in certain cases, is recognized in section 30 of article III of the Constitution of the state of Iowa; so that an act passed by the legislature in conformity with the right recognized in section 30, is not a general act. If it is a general act, then it is not a special act. Its distinction is pointed out *Page 464 strongly and clearly in the Richman case. To hold in this case that section 6 of article I has anything to do with it is to hold that the legislature of the state of Iowa cannot pass a legalizing act. The writer has examined a volume of the acts of the General Assembly, taking at random the Fortieth. In that we find over forty local or special acts legalizing something. Of these, fourteen were legalizing proceedings in county governments mostly dealing with financial matters, such as validating bond issues, etc.; there were fourteen legalizing acts of city council ordinances, resolutions and other provisions; eight were concerned with school districts; and four with drainage districts; while three were of private corporations. In each case of the public bodies, each had the power to do the things legalized, but something along the line that generated doubts as to the legality of the thing done, omitting the thing not done which generated the doubts. The power to legalize exists in the legislature, and that which the legislature can authorize it can legalize. The legislature could have authorized the entering into the contract, as it was entered into by the town of Grand Junction and Fairbanks Morse Company. So it could legalize the acts done by the various corporations dealt with in the legalizing acts of the Fortieth General Assembly. Each general assembly of the state has passed acts of this character since the adoption of the Constitution in 1857. It is safe to say that these run to nearly 2,000; each act authorizing the omission of something which the legislature might have dispensed with in the act sought to be legalized. Is this court at the behest of the plaintiff herein, who had overstayed its legal stay in the town by over ten years, and who spitefully, because it could not stay longer, holds on as a taxpayer of the town by buying a lot, in order to keep on its bedeviling and continue its dog in the manger policy, going to approve such actions and upset practically every legalizing act that has been passed in the state of Iowa? To hold that section 6 of article I had anything to do with this question would be to open up a field of litigation to invalidate hundreds, yes, thousands of legalizing acts which have been passed by the legislature under the undoubted power it has to pass them. The legislature being expressly allowed by section 30 of article III to pass such acts, and, such acts being special and local, can possibly in no way be governed by section 6 of article I.
This government is divided into three great departments; *Page 465 Executive, Legislative, and the Judicial. It seems to be a trait of human nature that when a person or body of persons are put in power, say, like Legislatures, courts, executives, each seems to desire to be the whole thing, and to have an idea that the whole government rests upon its shoulders; so the rights of these three departments must be considered. The constitution might have placed the entire thing in the hands of the Supreme Court; but it did not. It placed certain power in the Legislature; it placed certain power in the Court; it placed certain power in the Executive; and it is usurpation by the court to deny either of the other branches of the government the power the constitution places in each department.
The lower court in its opinion filed in this case cited the following cases to support the view of the court: Chicago, R.I. P.R. Co. v. Rosenbaum, 212 Iowa 227, 231 N.W. 646; Iowa Railroad Land Co. v. Soper, 39 Iowa 112; Richman v. Supervisors,77 Iowa 513, 42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308; State ex rel. v. Squires, 26 Iowa 340; Peverill v. Board of Supervisors, 201 Iowa 1050, 205 N.W. 543; McSurely v. McGrew,140 Iowa 163, 118 N.W. 415, 132 Am. St. Rep. 248; Windsor v. City of Des Moines, Iowa, 101 Iowa 343, 70 N.W. 214; Ferguson v. Williams, 58 Iowa 717, 718, 13 N.W. 49; Chicago, R.I. P.R. Co. v. Streepy, 211 Iowa 1334, 236 N.W. 24; Mote v. Incorporated Town of Carlisle, 211 Iowa 392, 233 N.W. 695. The court further said it was its opinion that where a city or town council enters into a contract, which it has authority and power to enter into, but under the law, on account of some informality in the proceedings leading up to the contract, the same is invalid, that such omission to observe the requirements laid down by the legislature may be cured by a legalizing act. It is not a question of lack of power on the part of Grand Junction because the town had the power to make the contract, but it neglected to require something that the legislature could well have not required in its original enactment.
The district court said in its opinion: "Whether the plaintiff has any standing in court as an interested party, is a question of grave doubt." I agree with that court. Plaintiff started this action as the owner of the electric system in Grand Junction, and as a taxpayer. The court kicked the plaintiff out of town, and held it had no franchise; no right to occupy the streets of the town. It was only a taxpayer as an electric company. *Page 466 It purchased a lot solely and only for the purpose of remaining a taxpayer, without any interest whatever other than the lot purchased, and for the sole purpose of continuing its annoyance to the town. I think this alone calls upon this court to tell the plaintiff it is no longer in position to carry on this litigation, and is not entitled to any relief here, and that the appeal should be dismissed.
The fact that this court held illegal the contract originally entered into is no bar to the legislature curing the defects by a legalizing act, for the question here is a public question. Wilcox v. Miner, 201 Iowa 476, 205 N.W. 847, 848. In the cited case, the opinion was by Stevens, long-time and honored judge of this court. A decree was entered in the district court of Adams county, April 18, 1924, permanently enjoining appellee, who was treasurer of Adams county, from collecting certain taxes purporting to have been levied under the authority of chapter 48, Acts of the Fortieth General Assembly, relating to the eradication of bovine tuberculosis, and canceling the lien of said taxes. A portion of the tax having been paid, the court retained jurisdiction to make further orders respecting the disposition thereof. No appeal was taken from this judgment. On April 23, 1924, a curative act, known as chapter 24, Acts of the Extra Session of the Fortieth General Assembly, attempting to cure prior defects in the statute and to legalize the prior levy of taxes thereunder, and directing the treasurer to collect and distribute the same in accordance with the statute as legalized, became effective. A motion was filed by the appellee to modify the decree, so as to permit the carrying out of the provisions of the curative act. A motion was made to strike this motion from the files, as it was a mere attempt to relitigate the matters involved and already disposed of by final decree, and that the court was without jurisdiction to entertain the motion or to modify the decree. This motion was overruled, and the appellants filed answer setting up merely that the decree was final, and that all matters involved in the action were fully adjudicated thereby, and that the court was without jurisdiction to hear the said motion or to modify or vacate the decree or any part thereof. In commenting on this case the court said: "It is also equally well settled that the legislature may validate that which has previously been declared invalid in a judicial proceeding, particularly where a public right is involved" — citing Hodges v. Snyder, *Page 467 45 S.D. 149, 186 N.W. 867, 25 A.L.R. 1128; Hodges v. Snyder,261 U.S. 600, 43 S. Ct. 435, 67 L. Ed. 819; State of Pennsylvania v. Wheeling Belmont Bridge Co., 18 How. (59 U.S.) 421,15 L. Ed. 435; Utter v. Franklin, 172 U.S. 416, 19 S. Ct. 183,43 L. Ed. 498; Donley v. City of Pittsburgh, 147 Pa. 348, 23 A. 394, 30 Am. St. Rep. 738; Blount v. City of Janesville, 31 Wis. 648; Nottage v. City of Portland, 35 Or. 539, 58 P. 883, 76 Am. St. Rep. 513; Richman v. Supervisors of Muscatine County, 77 Iowa 513,42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308; City of Emporia v. Bates,16 Kan. 495, 496; Hall v. Street Commissioners, 177 Mass. 434,59 N.E. 68; Lewis County v. Gordon, 20 Wash. 80, 54 P. 779; Skagit County v. McLean, 20 Wash. 92, 54 P. 781; State v. Henry,28 Wash. 38, 68 P. 368; State v. Newark N.Y.R. Co.,34 N.J.L. 301; Howell v. City of Buffalo, 37 N.Y. 267; Mills v. Charleton,29 Wis. 400, 9 Am. Rep. 578; Marion County v. Louisville N.R. Co., 91 Ky. 388, 15 S.W. 1061.
It will be noticed that the court cites in the opinion in the Wilcox case, Richman v. Supervisors of Muscatine County, 77 Iowa 513,42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308, and holding as has been pointed out in this opinion. Further commenting, the opinion in the Wilcox case says:
"Appellee does not in argument claim that the court has power to vacate or modify a decree in equity adjudicating vested private rights, after the term at which it was entered, in a proceeding such as we are considering. We shall, therefore, assume, without discussion or decision, for the purposes of this appeal, that the contention of appellants on this point is sound. This does not, however, necessarily dispose of the case. In the absence of some attack on the validity of the statute, we will treat it as in all respects valid and enforcible. The validity of the curative act being assumed, the modification allowed, which practically dissolved the injunction, had the effect only of conforming the decree to the statute, which permitted the levy and collection of the taxes notwithstanding the decree previously entered."
Hodges v. Snyder, 45 S.D. 149, 186 N.W. 867, 25 A.L.R. 1128, has a note beginning on page 1136 speaking of the validity of curative acts impairing judgments and rendering them ineffective. There is conflict in these, and the rule on them, but an examination of this note, recent as it is, shows that there are a *Page 468 large number of very respectable courts lined up in cases like this, and that the final judgment is not a bar to a legalizing act. The states so holding are Arkansas, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Nebraska, Oregon, Pennsylvania, Washington, and Wisconsin. The minority view is illustrated by cases from Illinois, Indiana, Maryland, Ohio, and Virginia.
While the validity of the curative act here is attacked, we think we have shown that the curative act was within the power of the legislature; that its determination to use this instead of a general act is finally binding on the courts, and that therefore the opinion in the Wilcox case is decisive of this case. We think we are supported in this case by the reasoning in the opinion of Chicago, R.I. P.R. Co. v. Rosenbaum, 212 Iowa 227,231 N.W. 646; also by Mote v. Town of Carlisle, 211 Iowa 392,233 N.W. 695. The only ground held not good was because it contained a clause "nothing in this act shall affect any pending litigation." Acts 43rd G.A., ch. 378. The court held that that was a self-nullification because the case at the time was pending in the courts.
In Chicago, R.I. P.R. Co. v. Streepy, 211 Iowa 1334, 1341,236 N.W. 24, 27, this court, in an opinion by Justice Grimm, held that a legislative act which legalizes a tax levy after the appellate court has ruled (but before entry of judgment) that the taxpayer is entitled to a refund of the tax paid, because the tax levy was void, owing to the absence of an authorizing statute, neither disturbs any vested interest of the taxpayer's nor constitutes an unconstitutional interference with the judiciary. The opinion says:
"The legalizing act in this case was passed after a reversing ruling by this court, but before any judgment was entered in the lower court in harmony with said ruling. We do not regard it necessary to enter into a discussion of the question whether this fact has any material bearing on the question at issue on this appeal. The parties are here dealing with public, not private, rights. In other words, the right involved is one between the power of a taxing board, acting for and on behalf of the public, and the plaintiff railway company, a taxpayer. In Richman v. Supervisors of Muscatine County, 77 Iowa 513, 42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308, proceedings were instituted by the boards of supervisors of Muscatine and *Page 469 Louisa counties for levying taxes for improvements on Muscatine Island. This court held the taxes levied by the board of supervisors to pay for the same to be void. The legislature then passed a legalizing act, and the case came back to test the legality of the legalizing act." Then follows a discussion of this act. The opinion says: "We are not called upon to determine what might have been the result, had a final judgment been entered in favor of the appellants prior to the enactment of the curative act, but on this question see Hodges v. Snyder,261 U.S. 600, 43 S. Ct. 435, 67 L. Ed. 819; Rafferty v. Smith, B. Co.,257 U.S. 226, 232, 42 S. Ct. 71, 66 L. Ed. 208, 210; United States v. Heinszen Co., 206 U.S. 370, 27 S. Ct. 742,51 L. Ed. 1098, 11 Ann. Cas. 688; Richman v. Supervisors of Muscatine County, 77 Iowa 513, 42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308; Chicago, R.I. P.R. Co. v. Rosenbaum, 212 Iowa 227,231 N.W. 646." The opinion says further: "It cannot be said, as claimed by the appellants, that there has been any interference with the powers of the judiciary of this state by a co-ordinate branch of the state government, the legislature. In harmony with the decision of this and other states and the federal courts upon facts such as appear in this cause, it was within the power of the legislature to enact the legalizing act in question, and thereby legalize retroactively the original taxes involved in this case."
While it is the belief of the writer of this that the opinion of the lower court in this case should be affirmed, there is a great deal to be said as to another disposition of the case, and that is the dismissal of the appeal, on the ground that when the plaintiff lost in this court the right to maintain its system in the town, and confessedly bought a lot that it might remain a taxpayer in order to further litigate and annoy the town, it should not be allowed to appeal. If the plaintiff were a taxpayer outside of its system, what was the sense of it buying a lot in the town? It could only have been to continue its spite litigation, and under these circumstances it would be very proper for the court to order a dismissal of the appeal. This would not preclude any other taxpayer from litigating any right he has. The plaintiff did not bring its suit except in an individual capacity; made no pretense to being a class suit in an averment it was brought on behalf of plaintiff and all others in like situation.
So, I think the order in this court would be proper, either affirming the case, or in dismissing the appeal. *Page 470