State ex rel. St. Joseph & Denver City Railroad v. Comm'rs of Nemaha Co.

[548] The opinion of the court was delivered by Valentine, J.: This is an application for a writ of mandamus brought originally in this court- by the Saint Joseph and Denver City Railroad Company to compel the Board of County Commissioners of Nemaha county to issue $125,000 of the bonds of said county to said railroad company in payment for a like amount of the capital stock of said railroad company for which it is alleged the county has already subscribed. Many important questions are involved in this case, one of which is the constitutional validity of an act of the Legislature approved February 10th, 1865, authorizing counties and cities to make such subscriptions, and to issue their bonds in payment therefor. (Laws of 1865, ch. 12, p. 41.) This question has been very ably argued on both sides, and if we err in our decision it is our own fault. Our decision is in the affirmative. We think the said act is constitutional and valid. Before this case was argued or submitted to us, a case from Leavenworth county involving the same question was submitted; (The Board of County Commissioners of the County of Leavenworth v. Edward Miller, ante, p. 479;) and since this case was submitted another case from Morris county supposed to involve the same question has been submitted; (Morris, et al., v. The Comm’rs of Morris County, post, p. 576.) So far as the constitutional validity of said act, or of similar acts; is concerned, we have considered all of these three cases together; and we now render our decision in this case and in that of Commissioners of Leavenworth Co. v. Miller at the same time. In the case last mentioned we give our reasons at length for holding said ch. 12, laws of 1865, to be valid, and it is not necessary to repeat them here. In this case we care [549] fully refrain from expressing any opinion at this time upon the other questions involved. "We shall reserve the consideration of such questions until the return of the alternative' writ of mandamus, when an issue may be formed and the facts found, so that we may know the exact questions in the case. The alternative writ is allowed. Kingman, C. J., concurring.