McGregor & Sioux City R. R. v. Birdsall , 30 Iowa 255 ( 1870 )

Day, J.

1. demurrer: indeflniteness. I. The first ground of demurrer is too general and will not be considered. Rev. § 2877; Davenport G. L. & C. Co. v. The City of Davenport., 15 Iowa, 6.

2. rahjroaj> : taxation. II. In the case of Stewart v. The Board of Supervisors of Polk County, ante, 9, this court held the act of 1870, authorizing townships and incorporated towns to aid in the construction of railroads, to be constitutional. That decision was not based upon the existence of any material distinction between the act of 1870 and that of 1868. Adopting the reasoning and following the conclusion in that case, a majority of the court hold that the second ground of the demurrer should have been overruled.

3.-man-damus. III. The remaining point presented by the demurrer is, in the argument, placed solely upon the ground that an unconstitutional law enjoins upon an officer no public duty. If the law is constitutional, this objection is answered. That mandamus affords an appropriate remedy for the wrong complained of, see Bryan v. Cattell, 15 Iowa, 538.

The judgment of the district court is reversed, and the cause remanded.

Reversed.

Beck, J., dissents.