McClure v. Owens , 21 Iowa 133 ( 1866 )

Dillon, J.—

The decree in this cause must be reversed, for two reasons:

i. decree: parties. 2_entry m vacation. 1st. It is against the board of supervisors, and they are not party defendants in the original petition, nor are they made defendants by a supplemental petition or order of court. 2d. The bill of exceptions recites, and it is made affirmatively to appear that, wn]lout ¿/le consent or agreement of the defendants who had answered, the cause was decided in vacation, and a decree in vacation adverse to them entered. This was error. Townsley v. Morehead, 9 Iowa, 565.

3.’prac-t?on?ófqcon.stitutional law. In their argument, the appellants’ counsel ofFerto waive these errors if the court'will pass upon the constitutional question which they claim is presented by the record, viz.:- that it is the duty of this court to ' ° follow the decisions of the Supreme Court of the United States respecting the validity of bonds issued by municipal and public corporations to aid in the construction of railroads. One of the judges of this court (Mr. Justice Wright) was counsel in the present cause in the court below, and can take no part in any question arising, on this appeal.

And it is the practice of appellate courts, a practice obviously correct, not to decide questions of constitutional law, unless absolutely necessary, when for any reason the bench is not full, or when in the particular case all of the .judges cannot, sit and assist in the determination. Briscoe v. Commercial Bank of Kentucky, &c., 8 Pet., 118; S. C., 9 Id., 85.

Por the reasons above given the decree below .must be reversed, and the cause remanded.

Reversed.