The case involves the validity of certain bonds issued by the judge of the county of Winnebago. Such cases have been numerous in this court. The one before us, though new in some of its aspects, presents no point which has not been substantially determined in preceding cases. The parties waived a jury, and the court, according to the provisions of the statute upon the subject, found the facts. The findings are set forth in the record. The proposition for us to decide is, whether the facts found warrant the judgment given.
The Code of Iowa of 1851 [1] authorizes the county judge, sitting as the County Court, 'to provide for the erection and reparation of court-houses, jails, and other necessary buildings within and for the use of the county.'
In Clapp v. The County of Cedar [2] it was said by the Supreme Court of the State that the office of county judge being created and his powers and duties defined by statute, the principles of the law of agency, where those powers and duties are drawn in question, have no application; that 'he is the living representative and embodiment of the county,' and that 'his acts are the acts of the corporation.' In Hull & Argalls v. The County of Marshall [3] it was held that, by virtue of his general authority, he might contract for the building of a court-house, to be paid for out of the revenue of the county, but that when a debt was to be incurred for that purpose special authority must be conferred by a popular vote in the manner provided by the statute. It was further held that where a loan was thus authorized, the form of the securities not being prescribed, negotiable bonds might be issued.
The statute provides that the judge may submit to the people, at a regular or special election, 'the question whether money may be borrowed to aid in the erection of public buildings,' and other questions not necessary to be mentioned; and that 'when the question so submitted involves the borrowing or expenditure of money' it 'must be accompanied by a provision to lay a tax for the payment thereof,' and that 'no vote adopting the question proposed will be of effect unless it adopt the tax also.' [4]
Upon looking into the record in this case we find that the question submitted to the voters was, 'whether the county judge, at the time of levying the taxes for the year 1860, should levy a special tax of seven mills on a dollar of valuation, for the purpose of constructing a court-house in said county, and said tax to be levied from year to year until a sufficient amount is raised for said purpose, not, however, to exceed ten years.' There was the requisite majority in favor of the proposition. It was expressed in this formula that a court-house was to be built, and we think it was implied that money was to be borrowed to accomplish that object. Otherwise the vote gave no authority which did not already exist, and was an idle ceremony. The statute authorized an appeal to the voters only that they might give or refuse authority to incur a debt. It could not have been intended that the erection should be delayed until a sum sufficient to pay for the structure had been realized from the tax authorized to be imposed, or that the work should proceed only pari passu with the progress of its collection from year to year. What is implied is as effectual as what is expressed. [5] Viewing the subject in the light of the statutory provisions and of the action of the people, we cannot say that the bonds were issued without due authorization.
But, if the authority were doubtful, there are other facts bearing upon this point which, in our judgment, are conclusive. The county judge is the officer designated by the statute to decide whether the voters have given the required sanction. He executed and issued the bonds, and the requisite popular sanction is set forth upon their face. It is a settled rule of law that, where a particular functionary is clothed with the duty of deciding such a question, his decision, in the absence of fraud or collusion, is final. It is not open for examination, and neither party can go behind it. Here the bonds are in the hands of a bon a fide purchaser, and under the circumstances he was not bound to look beyond the averment on their face.
It is not a valid objection that the bonds were made payable and were sold beyond the limits of the county of Winnebago and of the State of Iowa. The power to issue them carried with it authority to the county judge as to both these things-to do what he deemed best for the interests of the county for which he was acting.
These points have been so frequently ruled in this way that it is needless to cite authorities to support them.
It was competent for the county judge to visit New York for purposes connected with the proper disposal of the bonds. A statute of the State authorized him to procure a seal, and prescribed certain regulations to which all such seals should conform. While there, he might well take up bonds which had been previously issued, but not put on the market, and give others in their place, affixing to them a seal there procured for that purpose. There is nothing in the statutes of Iowa forbidding either, and we are aware of no principle of general jurisprudence which was violated by such a proceeding. Certainly the county could sustain no injury by the change, and it has therefore no right to complain. At most there was only an irregular execution of a power of the existence of which we entertain no doubt. Admitting an irregularity to have occurred it certainly cannot affect the rights of a holder for value without notice.
It is insisted that the county judge was functus officio at the time he issued the bonds in question, and that they are for this reason void.
The statute of the State provides that, in case of the absence of that officer, the county clerk shall fill his place. The absence spoken of is doubtless absence from the county seat. In that event unlimited authority is given to the clerk to act as his substitute. But it is not declared that the judge shall be regarded as out of office while absent, or that he shall do no official act during that period. Judicial power is necessarily local in its nature, and its exercise to be valid must be local also. But it is otherwise as to many ministerial acts, and different considerations apply where they are drawn in question. It does not appear that there was any conflict between what the judge did abroad and what the clerk did at home. All the judge did was purely ministerial in its character, and we see no sufficient reason for holding that to this extent he did not bring with him his official character and exercise his official authority. He did not for the time being wholly abdicate his office. Certain powers with which it was clothed fell into abeyance, and continued in that state until his absence ceased. The authority to do all that he did in New York touching the bonds, we hold not to have been in this category. [6]
JUDGMENT REVERSED, and the cause remanded with directions to enter a
JUDGMENT FOR THE PLAINTIFF IN ERROR.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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