Hamilton, J.
In the year 1932, the town of Grand Junction, Iowa, entered .into a contract with Fairbanks, Morse & Co. for the construction of an electric light and power plant for said town, to be paid for solely from the net earnings of said plant. Statutory authority therefor is provided by chapter 312 of the Code, section 6127 et seq. An action to restrain the town from carrying out said contract was instituted by the plaintiff, Iowa Electric Light & Power Company, which was at that time furnishing light and power to said town. From a decision in favor of the town, sustaining the contract, appeal was taken to this court, with the result that the judgment of the lower court was reversed, on the ground that the statutory provisions in reference to competitive bidding in the letting of said contract had not been complied with, and that the contract was therefore void. See the case of Iowa Electric Light & Power Co. v. Incorporated Town of Grand Junction, 216 Iowa 1301, 250 N. W. 136.
Thereafter, to wit, on January 19, 1934, the state legislature passed and adopted a legalizing act (Acts 45th G. A. Ex. Sess., ch. 225), purporting to make legal and valid the contract and proceedings which had theretofore been declared void by this court. After reciting in the preamble the history of the proceedings, the act provides:
‘ ‘ Be it Enacted by the General Assembly oe tiie State oe Iowa :
“Section 1. That all proceedings relating to the election held May 12, 1932, in the town of Grand Junction, Greene county, Iowa, on the proposition of establishing and constructing a municipal electric light plant; and all proceedings taken by the council of the town of Grand Junction, subsequent to said election, in advertising for bids, filing plans and specifications, and
the letting of a contract to Fairbanks, Morse & Company, under the provisions of sections 6134-dl to 6134-d7, inclusive; and the contract entered into between the town of Grand Junction and Fairbanks, Morse & Company, on July 19, 1932, for the construction of said municipal electric light plant, and the pledge-orders issued in connection therewith, are hereby declared to be legal and valid notwithstanding any irregularity, omission or defect in connection therewith, and that said contract entered into between the town of Grand Junction, Iowa, and Fairbanks, Morse & Company, and the pledge-orders issued in connection therewith, shall be and are hereby declared to be valid, and the said town of Grand Junction is hereby authorized to accept said municipal electric light plant, and pay for the same as provided in said contract and pledge-orders.
“See. 2. This act, being deemed of immediate importance, shall be in full force and effect from and after its publication in the Grand Junction Globe, a newspaper published in Grand Junction, Iowa, and in the Jefferson Bee, a newspaper published in Jefferson, Greene county, Iowa, without expense to the state. ’ ’
The bill was duly signed, certified, published, and approved, as provided by law, and became operative January 25, 1934.
On January 30, 1934, the defendants and each of them filed their application for an order modifying and setting aside the original judgment and decree, in which application they set up the history of the events leading up to the curative act, or legalizing act of the Legislature, and prayed that that portion of the judgment restraining them and each of them from carrying into effect the contract with Fairbanks, Morse & Co., hereinbefore referred to, be modified and set aside, and that said contract be determined to be a valid, binding obligation of the respective parties thereto.
An order modifying the original decree was entered on Lhe 14th day of March, 1934, as follows:
“Now THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the contract made and entered into by and between the Incorporated Town of Grand Junction, Iowa, and Fairbanks, Morse & Company, on the 19th day of July, 1932, for the erection of an electric light and power plant and distributing system for the Town of Grand Junction, Iowa, be and the same
is determined to be a valid, binding contract by and between the parties thereto.
“It IS FURTHER ORDERED, ADJUDGED AND DECREED that the order permanently enjoining the defendants and each of them as provided for in said decree, entered on the 20th day of December, 1933, from carrying into effect the said contract, be and the same is hereby modified, set aside and determined to be of no further force and effect.
“It IS FURTHER ORDERED, ADJUDGED AND DECREED, that nothing in this decree shall in any wise supersede any part of the final decree heretofore entered in this cause on the 20th day of December, 1933, until the 23rd day of March, 1934, and to all of which the plaintiff excepts.”
From the granting of this order, plaintiff has again appealed to this court.
It is claimed by appellant that the modifying order of the lower court is erroneous for the reason that it is based upon the validity of the legalizing act, and that the legalizing act is void and of no effect. It will thus be seen that the decision of this case rests entirely with the construction to be placed by this court upon the so-called “curative act” or legalizing act.
The case has been ably presented, and the legal propositions involved quite exhaustively argued by eminent counsel, which, we gratefully acknowledge, has been of invaluable assistance to the court in attempting to arrive at a correct conclusion in the solution of the troublesome questions presented.
May the legislature, under the limitations of the state and federal constitutions, pass a special act legalizing a contract made by a municipality and the proceedings thereunder, which have previously been declared by this court void as being in excess of and beyond statutory authority granted to the municipality, as in the instant case ? And in attempting to so do by the act in question, has the legislature trespassed upon established constitutional limitations ?
The errors relied upon for reversal, Nos. 1 to 7, in appellant’s brief, may be grouped as follows:
First. The legalizing act is unconstitutional and void, and therefore no law, because it is in violation of, and repugnant to. section 6 of article I, and likewise of section 30 of article III of the Constitution of the state of Iowa, and of the Fourteenth Amendment to the Constitution of the United States.
Second. The contract of the town of Grand Junction with Fairbanks, Morse
&
Co., having been held invalid by this court, the legalizing act is an infringement of the legislature upon the power vested exclusively in the judicial branch of the government, and hence is in contravention of section 1, article III, of the State Constitution.
Third. The plaintiff is thus deprived of its vested rights under the prior judgment of this court, in violation of the Fourteenth Amendment to the Federal Constitution, whereby the state is forbidden to pass any law denying any person the equal protection of the law or depriving any person of property without due process of law.
I. What are the powers possessed by the legislature over municipalities of the state?
In the case of City of Clinton v. Cedar Rapids
&
M. R. R. Co., 24 Iowa 455, Judge Dillon, speaking for the court, said:
“Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature. This plenary power on the part of the legislature over public corporations, saving vested rights of property and of creditors, is a doctrine so well settled that it is unnecessary to refer to more than a few cases asserting it.”
We said in the case of McSurely v. McGrew, 140 Iowa 163, at page 173, 118 N. W. 415, 419, 132 Am. St. Rep. 248:
“Within its field, the legislature is supreme. * * * and the legislature has plenary power * * * subject only to constitutional limitations or prohibitions. Its power is not a delegated one, but * *
*
it may exercise
all powers
not forbidden by the Constitution of the state, or delegated by the people to the general government, or prohibited by the Constitution of the United States.’’ (Italics are ours.)
It may therefore be stated that the legislature has plenary power over all municipalities within the state, subject only to the above constitutional limitations and subject to the further limitation that it may not, under the guise of legislative control, deprive a private citizen of vested rights.
II. If the thing wanting, or which failed to be' done, and which constitutes the defects in the proceedings, is something, the necessity for which the legislature might have dispensed with by prior statute (in the instant case, competitive bidding), then it is not beyond the power of the legislature to dispense with it by subsequent statute; and if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to have made the same immaterial by a subsequent law. Cooley, Constitutional Limitations cited in Ferguson v. Williams, 58 Iowa 717, 13 N. W. 49. See, also, State v. Squires, 26 Iowa 340; Iowa Railroad Land Co. v. Soper, 39 Iowa 112; McSurely v. McGrew, 140 Iowa 163, 118 N. W. 415, 132 Am. St. Rep. 248; Peverill v. Board of Supervisors, 201 Iowa 1050, 205 N. W. 543; Chicago, R. I. & P. R. Co. v. Rosenbaum, 212 Iowa 227, 231 N. W. 646; Chicago, R. I. & P. R. Co. v. Streepy, 211 Iowa 1334, 236 N. W. 24.
We think counsel for appellant concedes this proposition, but contends that the act must be of uniform operation; that it cannot be done by an act having only local or special application ; that such legislation is inhibited by article III, section 30, of the State Constitution, which is:
“Sec. 30. The General Assembly shall not pass local or special laws in the following cases :
“For the assessment and collection of taxes for State, County, or road purposes;
“For laying out, opening, and working roads or highways;
“For changing the names of persons;
‘ ‘ For the incorporation of cities and towns;
“For vacating roads, town plats, streets, alleys, or public squares ;
“For locating or changing county seats.
“In all the cases above enumerated, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State. ’ ’
Appellant further contends that it violates section 6, article I, providing that all laws of a general nature shall have a uniform operation, and prohibiting the granting to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all other citizens.
This identical question was before the court in the case of State v. Squires, 26 Iowa 340, where the same constitutional questions were raised. It involved the legality of the organization of an independent school district; the law at that time providing that a district should contain 300 inhabitants, and that 10 days notice of its organization should be given, which, it was alleged and proven in the case, had not been complied with. An act was passed by the legislature legalizing the organization of said district, notwithstanding the fact that it did not have the requisite number of inhabitants, and notwithstanding the fact that notice as provided by law had not been given, and this legalizing act was attacked as unconstitutional for the same reasons advanced by appellant in the instant case. The court said:
“In our view, however, the act set up in the defendant’s answer is not, in any just sense, a law creating a corporation, but is, both in law and fact, what its title purports, a curative act legalizing the defective organization of an independent school district. ’ ’
The court further says: “It cannot be successfully controverted that the legislature has the power to-create, or authorize the creation of independent school districts. This power, however, must be exercised by a general law of uniform operation, and it has been so exercised. See Laws of 1862, ch. 172.”
It was asserted in that ease that the act violated the constitutional provision against the passage of any local or special laws in certain enumerated cases “and in all other cases where a general law can be made applicable. ’ ’ The court said:
‘' That this is a local law cannot well be questioned. Is it a case where a general law can be made applicable? Certain irregularities in the manner of the organization of the independent school district of Epworth, are alleged to have occurred. No other such precise or analogous case is alleged or suggested as existing anywhere else in the State. No legal presumption arises that there is one. A general law, therefore, which would be
suited to the necessities of the independent school district of Epworth, could have no other or greater operation than the act in question; and if it could or would have no other effect, then no advantage could be derived, nor any evil avoided, by making a general law instead of the law which was enacted. This law, then, is not within the evil which the Constitution sought to provide against, nor would the enactment of a general law therein afford any remedy for, or relief from, that evil. # * * A general law, therefore, would not be applicable under the meaning of that term, as used in the Constitution. The act is not in conflict with article 3, section 30, or article 1, section 6.”
So in the ease át bar it must be admitted that the act of the legislature is a local or special act. It applies to no other town and could apply to no other town within the state of Iowa. There is no evidence introduced, and there is no presumption, that any other town in the state of Iowa was similarly situated. See, also, Haskel v. City of Burlington, 30 Iowa 232; Iowa Railroad Land Co. v. Soper, 39 Iowa 112; Ferguson v. Williams, 58 Iowa 717, 13 N. W. 49,
Another case which is “on all fours” with the case at bar is Richman v. Board of Supervisor’s, 77 Iowa 513, 42 N. W. 422, 425, 4 L. R. A. 445, 14 Am. St. Rep. 308. The issues arose on a writ of certiorari to the board of supervisors of Muscatine county, to test the legality of certain proceedings, pertaining to the construction of a levee on Muscatine Island. Section 1207 of the Code of 1873, in force at that time provides:
“Section 1207. The board of. supervisors of any county having a population of ten thousand inhabitants, as shown by the last preceding census, may locate and cause to be constructed ditches or drains, or change the direction of any water-course in such county, whenever the same will be conducive to the public health, convenience, or welfare.”
It will thus be seen that this section granted to the board of supervisors power to locate and construct ditches and drains. The next section provides the manner of procedure:
“Sec. 1208. A petition signed by a majority of persons resident in the county, owning land adjacent to such improvement, shall be first filed in the office of the county auditor, set
ting forth the necessity of the same, the starting point, route, and termini.”
The procedure therein provided for had not been complied with. The levee was constructed. A suit was brought by certain property owners, and the court held that the board of supervisors had acted illegally, and that it had no jurisdiction because the provisions of section 1208 had not been complied with, and the said petition had not been filed with the county auditor, and the assessment for the costs of construction of said improvement was adjudged invalid and set aside by the court.
The county in that case was in the same dilemma in which the town of Grand Junction found itself, after our court had held the contract with Fairbanks, Morse & Co. void. In each case the improvement had been constructed and was in operation. In each case there was an adverse adjudication by the highest court in the state that the proceedings were void. The Twenty-first General Assembly attempted to meet the situation by a curative act, legalizing the action of the board of supervisors. The act will be found in chapter 17, Acts of the 21st General Assembly, and a reading of the same will reveal that the decision of the Supreme Court was directly referred to in the preamble to the act, as was done in the instant case. It was contended in the Rickman case that where there is want of jurisdiction, and the acts done by the municipal body are for that reason void, no curative act can ever reach them. The court said:
“It cannot be questioned that the curative act is both local and special in its application. Its whole tenor and bearing are to that end. It is in aid of a- particular and a local enterprise. It can only be sustained upon the theory that a general law cannot be made applicable. Counsel for appellants, in argument, ingeniously, by way of illustration, attempt to show that a general law would reach the object. If the mere wording of the law, without regard to legislative purpose, is to be the guide for constitutional interpretation, we have no doubt that it could be effected. But was such the intention of the framers of the constitution? To so hold is to place ourselves in harmony with the often repeated attempts at legislative evasion, when confronted by constitutional law, which we have no desire to do. It would be difficult to conceive a state of facts that could not be brought within the provisions of a general law, with such a construction.
No such purpose was intended by the constitutional enactments, but on the contrary, it presumes conditions under which general laws are not applicable, and special or local laws are designed. ’ ’
There are numerous other cases supporting the Squires case and the Richman case, but it is unnecessary to quote further from our holdings. See, however, the cases above cited.
It is strenuously contended, however, by the appellant that this case is ruled by the Cedar Rapids Water Works case, reported in 118 Iowa 234, 242, 91 N. W. 1081, 1084. In fact, the appellant’s entire contention is withput substantial support in any of the prior holdings of this court with the exception of this one, lone, Cedar Rapids case, and it is on the rather strained, and free-hand exposition on the constitutional question involved in that case by the eminent jurist, the late Justice Weaver, that appellant relies, and the. gist of its entire argument centers around this language contained in that opinion:
“The effect of the legalizing act under consideration, in so far as it is applicable to the grant of a franchise beyond the limit of twenty-five years, is no more or less than an attempt to except or release the city of Cedar Rapids from the operation of a general statute which remains in full force against all other municipalities of the state, and thus accomplish by the device of a legalizing act that which the legislature could not do by direct enactment.”
The court, by way of illustration, said.: “If the legislature, in enacting section 473 of the Code of 1873 [limiting the granting of a franchise to a period of twenty-five years], had added thereto a proviso as follows, ‘Provided, that the limitation herein made upon the powers of cities and towns shall not apply to the city of Cedar Rapids,’ we think no lawyer would contend that under our constitution such legislation would be of any validity. ’ ’
Certainly not. And no one contends that such proviso would be legal under such circumstances.
The fallacy of appellant’s contention is pointed out by Justice Deemer in the case of McCain v. Des Moines, 128 Iowa 331, 333, 103 N. W. 979, 980, wherein the Cedar Rapids case was advanced as controlling in a case similar to the case at bar. The personnel of the court was the same as when the Cedar Rapids ease was determined. The court said:
“In the Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa 234, 91 N. W. 1081, a legalizing act was held invalid because it did not have general application.
In that case a general law could home been made applicable,
and therefore the act under consideration there was held invalid.
In the present case it is manifest that a general law could not home been made applicable;
hence the Cedar Rapids case is not in point.” (Italics are ours.)
Hence, we conclude that our court, as then constituted, did not intend the Cedar Rapids case to have the meaning contended for by appellant, when applied to a fact situation, such as we have in the Grand Junction case before us. A careful reading of the Cedar Rapids case will show that the constitutional question was only incidentally considered. In the statement of the issues, no mention is made of the constitutional matter, and the court concludes its discussion of that branch of the case by saying:
“This branch of the discussion has been based upon the plaintiff’s theory that the words ‘and an equal right thereafter with all others’ were intended as the grant of a franchise’beyond the period of twenty-five years. We think, however, it is not a violent rendering of the language to construe it simply as an undertaking that the water company shall have an equal opportunity with others in competing for a new franchise when the original exclusive grant for twenty-five years has expired. ’ ’
We might add that this view of the court is strengthened by the fact that the use of the streets and alleys of the city for use of the water company was limited to 25 years, and that the only life or vitality the franchise ever had, regardless of the curative act, was for the term of 25 years.
III. Does the act of the legislature invade the powers of the judiciary? In the Richman case, already referred to under division 2 of this opinion, there had been a prior adjudication, holding the proceedings of the board of supervisors void and illegal, and setting aside the special assessment. In discussing that phase of the case, the court said:
“It is urged with much earnestness that the prior suit in this court between these parties constitutes a bar to any proceedings under the curative act for the assessment and collection of
these taxes, on the ground that by such adjudication the assessment and levy thereof were declared void. The taxes in the former suit were avoided on the ground that there had been no legal assessment or levy. The object of the curative act was to create an obligation on the part of those who had been benefited by the improvement to pay therefor. The act makes direct reference to the adjudication, and provides for a reappo’rtionment and reassessment with a view to a redetermination of the question of liability. We think it was competent for the legislature to so provide. The authority of the legislature to provide for new trials or the re-examination of issues is not questioned. The former trial determined no vested interest or right, and is in no sense a bar to the proceeding under the new law.”
In the case of City of Clinton v. Walliker, 98 Iowa 655, 660, 68 N. W. 431, 432, the curative act was passed after the action was commenced, but before the decision of the court. In that case we said:
“There is no doubt that this act was passed for the very purpose of legalizing the proceedings of the city council of Clinton in relation to the paving of its streets. It was passed after this action was commenced. If valid in other respects, the fact that this action was then pending does not affect the curative act. ’ ’
Likewise, in the Squires case, heretofore referred to, we used this language:
“Nor is it material that a cause was pending involving the question of the validity of the proceeding sought to be cured, when the act curing it was passed. ’ ’
“The mere fact that the legalizing act had been passed while the litigation was pending gave the plaintiff no vested right, for the bringing of a suit vests no right in a particular decision. * * * There was no final judgment. We are not called upon to determine what might have been the result, had a final judgment been entered in favor of the appellant prior to the enactment of the curative act, but, on this question, see Hodges v. Snyder, 261 U. S. 600, 43 S. Ct. 435, 67 L. Ed. 819; Rafferty v. Smith, B. & Co., 257 U. S. 226, 232, 42 S. Ct. 71, 66 L. Ed. 208, 210; United States v. Heinszen & Co., 206 U. S. 370, 27 S.
Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688; Rickman v. Supervisors, Muscatine County, 77 Iowa 513, 42 N. W. 422, 4 L. R. A. 445, 14 Am. St. Rep. 308; Chicago, R. I.
&
P. R. Co. v. Rosenbaum, 212 Iowa 227, 231 N. W. 646, and cases cited. It cannot be said, as claimed by the appellant, that there has been any interference with the powers of the judiciary of this state by a co-ordinate branch of the state government, the legislature. In harmony with the decision of this and other states and the federal courts upon facts such as appear in this cause, it was within the power of the legislature to enact the legalizing act in question, and thereby legalize retroactively the original taxes involved in this case.” Chicago, R. I. & P. R. Co. v. Streepy, 211 Iowa 1334, 1342, 236 N. W. 24, 28.
Likewise, in the case of Carr v. District Court, 147 Iowa 663, 676, 126 N. W. 791, 795, Ann. Cas. 1913D, 378, a certiorari proceeding to review an order granted in a contempt proceeding brought against certain individuals, members of a school board, which involved an act, legalizing certain school warrants which had been declared by the court to be illegal and which the officers of the school district had been perpetually enjoined from paying, it was claimed that the act of the legislature set aside the decree of the court, and that the act was unconstitutional and void. Judge Deemer, speaking for the court, said on this question:
“The main point made by plaintiffs’ counsel in this connection is that the legislature had no right, power or authority to modify or in any manner change a decree of court. Of course this is the general, although not an universal, rule. The rule applies to private and individual rights, and not in full force, if at all, to actions affecting municipal or quasi municipal corporations or to bodies municipal or otherwise which have been created as a part of the instrumentalities of government. In its sovereign capacity the state may deal with these instrumentalities or governmental agencies in a manner quite different from its dealings with individuals or private corporations or municipal corporations in so far as their private rights are concerned. See, as supporting these views, Guthrie Nat. Bank v. Guthrie, 173 U. S. 528, 19 S. Ct. 513, 43 L. Ed. 796; Utter v. Franklin, 172 U. S. 416, 19 S. Ct. 183, 43 L. Ed. 498. In the latter case there had been a judgment of court invalidating a bond issue
which was afterward validated by act of Congress.
See,
also, Richman v. Board of Supervisors, 77 Iowa 513, 42 N. W. 422, 4 L. R. A. 445, 14 Am. St. Rep. 308; McSurely v. McGrew, 140 Iowa 163, 118 N. W. 415, 132 Am. St. Rep. 248.”
Our eases are in harmony with the Supreme Court of the United States on this question. In the case of Utter v. Franklin, 172 U. S. 416, 19 S. Ct. 183, 186, 43 L. Ed. 498, 501, we find this language:
‘ ‘ The fact that this court had held the original Pima county bonds invalid does not affect the question. They were invalid because there was no power to issue them. They were made valid by such power being subsequently given, and it makes no possible difference that they had been declared to be void under the power originally given. The judgment in that ease was
res judicata
only of the issues then presented, of the facts as they then appeared, and of the legislation then existing. ’ ’
What the legalizing act undertook to accomplish was to validate the very thing which the Supreme Court, by its decision, had held invalid, not from its inception, but to make it legal and valid and binding as and of the date that the act went into effect. It was not an invasion by the legislature of the powers vested in the judiciary and in violation of section 1 of article III of the State Constitution. It is not in any degree an attempt on the part of the legislature to recall the decision of the Supreme Court; on the other hand, it is a valid exercise of its constitutional prerogative and sovereign power over one of its agencies of local government of its own creation. It is a wholesome rule, in that it stops endless litigation and quiets property rights and is in the interest of the public good.
It would serve no useful purpose to further extend this opinion by quotations from other and prior holdings of this court, but see, as bearing on the general principles involved, Windsor v. City of Des Moines, 101 Iowa 343, 70 N. W. 214; Chicago, R. I. & P. R. Co. v. Rosenbaum, 212 Iowa 227, 231 N. W. 646; Peverill v. Board of Sup ’rs, 201 Iowa 1050, 205 N. W. 543; Mote v. Carlisle, 211 Iowa 392, 233 N. W. 695; Chicago, B. & Q. R. Co. v. Board of Supervisors of Appanoose County, 211 Iowa 1334, 236 N. W. 24.
We conclude that under the prior holdings of our court, the
legislature could have dispensed with the matter of competitive bidding in the first instance, and that, therefore, it had the power to remedy by curative act by dispensing with competitive bidding after the work was done; that it was a matter of discretion with the legislature in the first instance to require the performance of these conditions precedent, and hence it may waive a failure to perform them; that it was not a case calling for a law of a
general nature
within the meaning of section 6, article I of the State Constitution; that it does not come within any of the exceptions provided for in section 30, article IIT of the State Constitution, and is not a case where
a general law coulcl be made applicable
within the meaning of said constitutional provisions; and that there is no provision of the State or Federal Constitution inhibiting the action of the legislature in passing the legalizing act in question.
There remains but one other question presented by the assignment of errors. It is contended by the appellant that the act invades vested rights of the plaintiff. The record in the case shows that the plaintiff, Iowa Electric Light & Power Company, has been ousted by decree of this court from the town of Grand Junction, and that it is not now occupying the streets and public places of the town or distributing any electricity within the corporate limits of said town, and it, therefore, has no vested rights in the judgment of this court within the meaning of the Constitution. The record shows that it purchased a lot within the town for the purpose, as shown by the testimony, of retaining the fruits of the victory in the original case. There is no evidence that plaintiff paid any taxes into the treasury of the town. Furthermore, the plant is to be paid for solely out of the future earnings of the plant, and in no event can the taxpayer be called upon to pay any taxes because of the operation of the said plant or on account of the contract entered into for the construction of said plant. See Wyatt v. Town of Manning, 217 Iowa 929, 250 N. W. 141; Greaves v. City of Villisca, 217 Iowa, 590, 251 N. W. 766.
The only vestige of right which the. plaintiff has to raise the constitutionality of the statute in question is on the theory that, as a taxpayer, its action is brought in a representative capacity, on behalf of the town, and it is a doubtful question, Tinder the holding of the case of Scott County v. Johnson, 209 Iowa 213, 222 N. W. 378, wherein we said that a “litigant, to
challenge the constitutionality of a statute, must establish in himself a vested right which it is alleged the statute infringes. ’ ’
However, we have resolved the doubt in favor of the plaintiff and hold that it has brought itself within the rule in its representative capacity, and that the constitutional questions are properly raised by it.
For the reasons above set forth, it follows that the judgment of the lower court should be, and it is hereby, affirmed. — Affirmed.
Donegan, Eichards, and Powers, JJ., concur.
Parsons, J., specially concurs.
Albert, J., takes no part.
Kintzinger, C. J., and Anderson and Mitchell, JJ., dissent.