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About The Conservative (Nebraska City, Neb.) 1898-1902 | View Entire Issue (Dec. 19, 1901)
, c. - - - - - rwrrT " " " , ' : . . . T7 .Y ; ' y F r1 > / * i ? 10 ynui ft the ; Second time cHos" eft.words-andiAviflr cordial : sincerity & the judicial opinion I had the ; hondc % ' i to dellyer'many ' years ago as ono : of # > the-judges of the supreme court ofr the state of Iowa , iiv the' case : co'nnty.v/Dubuquei&'Pacific Eailroad' Company. Your Jflrst letter ; written , froin Washington , February 21 , 1896' highly complimentary , I esteem as a valuable contributioir , and shall cherish - : ; ish it as an unbiased endorsement of a iy dissenting opinion on a question delivered - ; : livered without precedent at the time , ' " . : and in violent opposition to public , , . sentiment. Later this opinion of mine was confirmed by Justice Miller of * the United States1 supreme court , and M > also by the supreme court of Jbw.a. " ' f The question before the .supreme. iy ; court of the state -which Jed : to the ' opinion you so earnestly commend was , whether under .the then constitution and laws-of Iowa A.nnajority of the voters could , at an election .held" for ( jliat 'purpose , tax thp people by vqt- JLug bonds , to build a railroad. A ma jority < of the .court , Williams and' Gre.ene , .decided-tjiat the people could be-so taxedxaudaffirmed the judgment fjtlietconrt below by whiclr$200,000 buildflic road was declared ; Frpm" this docisioiiI dissented , and wrote' ' out at some length my opinion iV/ Which is found'in the'4th Vol. , Page 6 , -of G. Greene's Iowa Supreme Court Re- pprts' This decision covers ten pages ijaricl' & half and , as the question was , a new one' before the courts , and as J. had taken a position opposition to .my-brother judges 4au4 in deflate e of a public clamor which prevailed * ! ! over itbejstate for voting .bonds , it was prepared / pared with some care. I .discussed the questions to tjie best of.my fl jjmd.-without the aid .pf authoritjiep.pr ' etwrWfe , argument pf .counsel'Tl , > e opinion of a majority of tihfc court AV S JUejit the tipe ; wj&jiph & Wtvs ; gf jtnuch embarrassment : , I be a JoHstp $ # pw tj > e .point ? on .which : rcp.nrfcjejied : to .sustain a judgment , to my miiid erroneous. The .question , as I have stated , was new ' .tp.tlfe court and tjjebojjkjsj were barren of ijutJidrities. . .iirt | { enunciation of njy v ews I ; WftO JfclV 'jposltlion ' you have w k'.u 6o.grapiricaliy , . * , * - * . * * * % . ehtioned"i > . , . , k , .ibli1a V- ypvrlate Jettor'ttho ffttljer--tl ; danipf Jblio".racd'of ougjjts li\iimipai \ greed and antagonistio to e. t axing po\v6r of $ , & ' * Ti 'C"VHw9P ' * vvvjr'w i v years of ex " ( l0- * .lt ] ° HW | [ slifl9e ePa ? ° ' * "is' V ' , e.yrs there - expfe'e re , spuiid Si ecision ot % the court the * bouda , subsequent dvonts. have i dufforing ; as Jirop.erty vas sold. at Iip > auction , and. inc. some , instaricifti familie&wers ' dispossessed of their homea bcu-3ndjgmoiits rendered and ex ' nfr-isgucdau aid of these collec tions. But outside - > 0f the constitutional question involved in the case , I as sumed a higher ground that voting such tax was in violation of the civil and political rights of the : citizen , and could not be "properly levied , as such tax was in no sense in aid of the support of the government for which taxes alone should bo levied. At the risk of wearying you. . I will give you some extracts from the opinon. "Taxation is an arbitrary power. It is a high prerogative. Itiis Ian .ele ment of sovereignty. It fcan only be levied by express .la.w .or the. will of the 'monarch. "It is based upon public necessity , and proceeds upon the ground thatit is essential to the public welfare and a.afety. It should only be resorted to wjiei * required' for this purpose. Un less confined within its legitimate sphere , it will become despotic and subversive of- those liberties which it was .ordained to protect. Jt is insid ious and demands constant watching or under the assumed name of public good , general prosperity , etc. , it will invade and destroy the rights of the people. .It , fs. that power which the mother country attempted to exercise over the infant colonies , and which met with such a signal rebuke from the stern men of those days , who taught the world that they knew weli. how to discriminate between the right1 fill , and oppressive exercises of hiff power ; and it well becomes our gov ernment to prevent its exercise for any pther purpose than support , defense and security , It is a rule necessary to php ( existence of society .that many of ! 'our natural rights must be surrend ered for jfcjie pubflo good. In exchange for ) th'&g , vf-e ' obtain protection to life 4nd liberty , security in acquiring , possessing and ' /enjoying / "property. Meriibers . , . of this pojety are bound . , ' - " r - > i ' j i J t- * - F * - > V T / to contribute chejr proportion of the expettse in ittstaii ing an organisation which affords iJiese great blessings. For the ftrua opjjept of protection , na tional , , state'A- Bounty and city organi zations , are . .established. With .A wise national constitution , clearly defining he rights of the several state's , aud planting important laud .marks in the : cpiuse of civil and/religioris liberty ; } vith pur state cpnstitutiop embracing principles applicable to the situation , and" promotive of" the happiness of the people ; these- constitute the founda tion of'organized.sqoJQtytiand here the citizen jheright .to Jppfe'to , ascer tain the extent of' the rights yielded and acquired by 'his rae'nibership , Here be finds ihat-the-objep.t of gov- eipnient , js . tp.talie.frpm him only .such natural right's 'aj e.inppnsistent with the enjoympnili-of pivil liberty , and to aejnand by jj vyj > f ' axojijionr only so ' " 3f n'ph M'Ja n pess > ry for "Jtlje. support pf that jjoyernment. . Jie also finds in the state constitution a power delega- fc d'to the legislature to create politi cal and municipal corporations ; IriSdcef counties and cities are'organized : : " 'fdr/the sole' purpose ofJ rendering thos- . , , 'enjoyment ' of * life , liberty and pro--- ' fperty' more perfect and complete. 'No'V/as a member of the .government- jvhac. taxes is lie. compelled to pay ? He ; * -nius.fr assist in the'supportofca nation-- 'al'and. ' state government becauseitheseri . .makeand , execute the laws which : < .afford protection. He must bear hisi , share in the necessary county expenses ; because this organization is but a re fined branch of the government , placing - ' ing life , liberty and property upon : a more secure and permanent basis , and bringing protection more perfectly within his reach. This , then , is. the object , of government , and its support , the only cause for which the citizen can legitimately be taxed. * * * The Iowa state constitution declares that all men are by nature free and in dependent , and have certain inalienable rights , among which are those of en joying and _ defending life and liberty , acquiring"possessing and protecting- " property ; if this property is to : be held 1 bythe citizen subject to the will of tlie majoiity , and ifby that majority , it can bo , taxed , sold and appropriated towards' building works of internal improvement ; where is the.enjoyment , possession and protection guaranteed by this article of .the constitution ? Is a man protected in the possession of his property when public clamor may at any time demand it for what a .majority may please to call public purposes ? Do the people of Iowa hold their land by so feeble a tenure ? * * * In my concluding sent ences I say , in the examination of this question , I have endeavored to meet and decide all the points fully and fairly. I have not been insensible of the weighty consequences suspended upon the decision of this case. I have endeavored in vain to prevent a deci sion which I believe erroneous , and which must sooner or later be so deT plared. Counties have voted stock prrailroad purposes from fifty to four ( hundred thousand dollars each with indifference as to payment , which , to my mind , is most alarming. But few of the counties in comparison to the entire/number intrusted have as. yet voted ; and it is but a fair deduction , unless this spirit is soon checked , that the state will not be less than teii mill ions of dollars in debt within the "next n fiye years for railroad purposes * alone. The interest upon this enor- .inpus sum will not be less than seven ; f hundred thousand dollars per annum , i all of which must be' ' raised" by 'direct' tax upon the .people. . In these times of feverish excitement- when the pub lic mind is jostled off from its true balancfe , when public and private econ- pmy ? as'1 well as natural justice , are lost .eight of in the clamor for public improvements , would it not be well , $0 $ "pause , to refer ba.ok to first priuci- j pies and reflect upon consequences which involve a sacrifice pf const r- tioual rights , loss of , private property and an utter perversion.of county.and city organization. " I will now q'qotp frojtn tfte OPJnjpn pf the late Justice jiU V pf tjp United States supreme coujfydeUyereiji at the December term , 186 ? > in jtye case of Gelpcke v. CJty pf Jubune , growing out of the same eleotipn as in the case of Dubuque County v. Dubuque & Pacific railroad , reported in 4th G. Green before cited , and involving - . volving the same question as in that
