Powers v. The County of O'Brien

• Decision Date: 06 October 1880
• Citation: Powers v. The County of O'Brien, 6 N.W. 720, 54 Iowa 501 (Iowa 1880)
• Parties: POWERS ET AL v. THE COUNTY OF O'BRIEN ET AL
• Court: Iowa Supreme Court

6 N.W. 720

54 Iowa 501

POWERS ET AL v. THE COUNTY OF O'BRIEN ET AL

Supreme Court of Iowa, Des Moines

October 6, 1880

Appeal from O'Brien District Court.

THE plaintiffs, being two hundred citizens of O'Brien county and each being owners of separate tracts of land in said county, brought their action in the court below, and in their petition set forth that the said county had incurred indebtedness largely in excess of the five per cent constitutional limit. They asked that all bonds issued by the county, and all outstanding warrants in excess of said five per cent, be declared null and void as against plaintiffs and their property; that the county officers of defendant be restrained by injunction from paying, or assisting in paying and from levying and collecting any tax for the purpose of paying, in any manner, said indebtedness or any indebtedness of said county in excess of said constitutional limit. An injunction was allowed as prayed.

The defendants moved to dissolve or modify the injunction, and to require the plaintiffs to elect which one of them would proceed with the action, and to strike from the petition the names of all the others upon the ground that plaintiffs have separate and distinct interests, and cannot join in one action. The motions were sustained in part. Plaintiffs appeal.

AFFIRMED.

Miller & Godfrey, for appellant.

Joy & Wright, for appellees.

OPINION

ROTHROCK, J.

In order that it may be understood what the defendants were enjoined from doing, it is necessary to set out the injunction. It is as follows:

"The defendants are hereby enjoined and restrained from paying, or assisting in paying, and from levying or collecting any tax for the purpose of paying, or in any manner by reason of the indebtedness of O'Brien county which has been created or become due since the 15th of October, 1861, and is in excess of five per centum upon the taxable value of the property of said county, to be ascertained by the last state and county tax lists, previous to incurring of said indebtedness of the said county of O'Brien, exceeding the five per centum of the taxable value of the property within said county as ascertained or shown by the last state and county tax lists, previous to the incurring of such indebtedness, until the further order of our District Court of the State of Iowa in the premises, etc."

The following is a copy of the order of the court modifying the injunction:

"Now at this time, to-wit, December 2, 1878, comes on to be heard, on the motion of the county of O'Brien and the members of the board of supervisors, the auditor and treasurer thereof, to dissolve the injunction heretofore granted in said case, and in case of a refusal to dissolve the same, that the injunction heretofore issued be modified, and the court, after hearing the arguments of counsel thereon, overrules motion to dissolve the injunction, and continues the same in force as modified until the amendments of the petition to be made within ten days under the order of the court, to which ruling of the court the said defendant excepts. And it was further ordered that the injunction heretofore issued be so modified as not to prevent the officers of the county from paying the ordinary expenses of the county, and that the officers of the county be, and are not enjoined from levying and collecting taxes for the payment of the judgment bonds and the funding bonds issued in payment of judgments rendered against the county, to which plaintiff excepts, and that the injunction be, and is, limited to the levy and collection only of taxes upon the property described in the petition in this cause. And it is further...