Nelson v. Consol. Independent Sch. Dist. of Troy Mills

I raise no question as to the probable correctness of the majority opinion as an original proposition. My objection to it is that it ignores the fact that for many years the injunctive remedy has, by common acquiescence of bar and bench, been prayed and granted in this class of cases. Numerous cases of this character appear in our Reports which have been tried and decided on the merits in injunction proceedings. It is true that, in such cases, the propriety of the procedure was not challenged by counsel; and I freely concede that it is ordinarily no part of our duty, as between the litigants in a case, to raise a question which they have chosen to ignore. But these decisions have all been promulgated as law, and each of them has, to some extent at least, become a precedent. Granting that, ordinarily, they become precedents only for what they actually decide, the fact remains that the practice referred to has become so general as fairly to amount to precedent. Indeed, it is a fair contention, even though a debatable one, that, in the Wiggins case, 122 Iowa 602, we gave our affirmative approval to the remedy by injunction.

We may fairly presume that many cases have been begun and are pending in this form, through the reliance of counsel upon the practice thus impliedly approved. The effect of our present holding will be disastrous to such pending cases; and the fatal blow will be as stealthy as that of a modern submarine.

The remedy by injunction is flexible and practical, and is not easily subject to abuse. The practical result will be the same by either remedy.

I feel sure that the majority holding will inflict a general surprise upon the bar and upon the trial courts of the state. If this be correct, the holding carries something of an adverse presumption against itself. If it be deemed desirable to terminate the long-time practice above referred to, it were clearly better that it be done by legislation, which would operate prospectively only; whereas a change by judicial decision is necessarily retroactive.

SALINGER, J., concurs in this dissent.