Cedar Rapids & Mo. River R. R. v. Boone County

Day, J. 1. Board of supervisors: county: swamp lands: elections. I. As to the authority of the board of supervisors toi call a special election for the purpose of submitting the question of the ratification of the contract. Appellant insists that such question can be submitted only at a general election, or at a special election called for some other pur — 49 — pose in the mode authorized by law; and that the board of supervisors have no power to call a special election for the purpose of submitting such question for ratification. The argument possesses some plausibility, but is believed not to be sound. Special elections are such as are held in pursuance of a special law, and such as are held to supply vacancies in any office, and may beheld at such time as may be designated by such special law, or the proper officers duly authorized to order such election. Rev., § 460. Section 250 of the Revision (114 of the Code of 1851) provides that the county judge may submit to the people of his county at any regular election, or at a special one called for that purpose, the question whether money may be borrowed to aid in the erection of public buildings. The next section provides the mode of submission. Section 9S6 of the Revision, being section 1, chap. 132, Laws seventh general assembly, provides “ that it shall be competent and lawful for the counties owning swamp and overflowed lands, to devote the same or the proceeds thereof, either in whole or in part, * •* * for making railroads through the county or counties to whom such lands belong; provided, that before any of said land for the proceeds thereof shall be so devoted to any of the purposes aforesaid, the question whether the same shall be done shall be submitted at some general or special election to the people of the county. This section was amended by chapter 77 of Laws of 1862, but the amendment does not affect its construction. Section 988 of the Revision provides that “ Before such contract shall be of any force or validity, the same shall be published for four weeks immediately preceding some general or special election, in some newspaper published in the county * * * together with a proclamation of the proper officer directing how and when the vote thereon shall be taken, and returns made and canvassed, and in what manner and form the people shall vote thereon.” This statute authorizes the submission of the question at a special election. — 50 — Evidently the purpose was to enable the inhabitants of the county to ratify a contract, for the disposition of their swamp lands, without waiting the recurrence of the annual general election. But as special elections at the call of the governor are not at all of usual occurrence, this purpose of the act would be defeated, if the question could be submitted at such special election alone. The power to do an act carries with it, by implication, the power to use all the necessary and usual means sufficient for the accomplishment of the act. It seems to us, therefore, that while these sections do not in express terms authorize any one to call a special election for the purpose indicated, they do by implication add another cause, for which the county judge, who at that time was the financial agent of the county, and charged with the management of its business, might order such election to be held. The act creating the board of supervisors took effect July 4, 1860, and provides that “ The board of supervisors, at any lawful meeting, shall have the following powers * * * To represent their respective counties, and to have the care and management of the property and business of the county, in all cases where no other provision shall be made.” Revision, § 312, subd. 11. Section 330 of the Revision provides: “ That all laws which may be in force at the time of the taking effect of this act, devolving any jurisdiction or powers on the county judges, which said jurisdiction or powers are conferred on the county board of supervisors, by an act of the present general assembly, entitled ‘ An act creating a board of county supervisors, defining their duties, and the duty of certain county officers,’ shall be held to apply to, and devolve said jurisdiction and powers upon, the said county board of supervisors, in the same manner and to the same extent as though the words ‘ county board of supervisors ’ occurred in said laws, instead of the words “county judge.’” Since the passage of the act creating the board of super — 51 — visors, it has been held that the county judge has no power to submit to the voters of the county any question in relation to the affairs of the county, and that this duty and right belongs exclusively to the supervisors. Yant v. Brooks, 19 Iowa, 90, 91; Starr & Rand v. Board of Supervisors of Des Moines County, 22 id. 491. It follows from these views, that, in our opinion, the board of supervisors had power to submit at a special election, for ratification, the contract under consideration. 2. - submission to voters. II. It is next objected, that it is essential to the validity of the contract, that it should be submitted to all the legal voters of the county; that some of them were absent in the military service of the United States, to whom the question was not submitted. Independently of chapter 29, acts extra session ninth general assembly, it will not be claimed that any'question should or could have been submitted to the vote of the soldiers absent from the State in the military service. If any necessity existed in the present case for such submission, it was in consequence of the provisions of said act. But an examination of it shows clearly that it applies only to general elections, and does not impose the duty to submit, nor confer the right to vote upon any question presented at a special election. And even if this question had been submitted at a general election, the soldiers absent from the State would have had no right, under the provisions of said act, to vote upon. it. See sections 5 and 6 of the act. We conclude that it constitutes no valid objection to this election, that the question was not submitted to .those absent in the military service. 3. Evidence : paroi,agieement. III. It is next urged that the contract should not be enforced, because of the fraudulent acts of plaintiff and its agents in procuring the signing of the conantract thereon. A public meeting for railroad purposes was held in the court-house at Boonsboro, June 1, 1863, at which a committee was appointed to — 52 — enter into a contract on belialf of the citizens of said county. Upon the day following, this committee entered into a contract with Walker, plaintiff’s agent, which recites that the people of said county propose to convey to plaintiff the swamp lands of said county, and contains the following provision: “And the citizens of said county further propose to pay to said company, within thirty days after the cars are running regularly on said road, to the town of Boonsboro, or to a point within one mile of the original plat of said town, the sum of $5,000 in cash, and a further sum of $5,000 in cash or its equivalent in land or produce at a fair cash valuation. It is understood and agreed, that for the $5,000 payable in cash, approved notes of the subscribers to that fund shall be given, payable in accordance with the terms of this agreement, without interest if paid at maturity, and if not, to draw ten per cent after that date. Eor produce, notes shall also be given, payable in like manner and time, in produce at merchantable rates, at the time of delivery, and to be delivered at the nearest station on said road.” The citizens of the county further agree to furnish the right of way through said county free of expense to plaintiff. Plaintiff agrees to enter upon the construction of the road without delay, and to complete the same to some point within a mile of the original plat of said town, on or before the 1st day of January, 1866. It is claimed by defendant that, at the time this written contract was executed, it was further agreed, in consideration of the giving of $10,000 cash or property, the depot should be located within a mile of the public square, Boonsboro. That at the request of Mr. Walker, that part of the contract was not put into writing, he urging that, if the fact became known at Swede Point and places out of town, that the depot was to be located near Boonsboro, they would vote against the proposition. It is quite clear that this verbal agreement, if made, being a parol contemporaneous agreement varying the terms of a valid written — 53 — agreement, could not be established nor enforced. No complaint, however, is made of the failure of plaintiff to comply with this agreement, for it is' established that the conditions upon which it was based have not been performed by the county. The principal fraud alleged is, that various citizens of the county, interested in securing the ratification of the contract, represented to the citizens of Boonsboro that the depot would be located within one mile of that place, and to the inhabitants of Swede Point and other places that they would be as likely to get the depot as would Boonsboro, thus securing the votes of all the localities in favor of the contract. It does not appear that the plaintiff or its agents had any thing to do with these representations. And however unfair and reprehensible this conduct may be, it cannot affect the rights of plaintiff in this action. IY. The contract stipulates that it shall become null and void if ten miles of said railroad westerly from the east line of said county are not completed and put in running order, on or before the 1st day of January, 1866. Appellant claims that this condition was not performed by plaintiff. This raises simply a question of fact. The evidence is conflicting, but a careful examination of it satisfies us that the decided preponderance is in favor of the finding of the court below. We have thus examined all the objections urged in appellant’s argument. Discovering no valid objection to the decree of the court below, the same is Affirmed.