,
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
