Finney v. Lamb

Worden, C. J. This was an action by the appellants against the appellees, to enjoin the collection of a certain tax, assessed in Fountain county to aid in the construction of two railroads. Demurrer to the complaint sustained, and exception. Judgment for defendants. The ruling on the demurrer is assigned for error. It appears by the complaint, that a petition was filed before the board of commissioners of the county, asking [2] for an appropriation of the sum of one hundred and thirty-two thousand eight hundred and six dollars, to aid in the construction of two different railroads, naming them, to be apportioned between them as follows: Thirty-four thousand dollars to one road, and ninety-eight thousand eight hundred and six dollars to the other. A vote was taken* on the entire proposition, and not on the appropriation to each road separately, resulting in favor of the appropriation; and the tax was levied in pursuance thereof. The vote, being for an appropriation to two roads, was a nullity, and the tax levied in pursuance of it illegal, and its collection should be enjoined. This was decided in Garrigus v. The Board of Commissioners of Parke County, 39 Ind. 66; Bronenberg v. The Board of Commissioners of Madison County, 41 Ind. 502. If there was any objection to the complaint, other than that involved in the facts above stated, we do not perceive it, and none has been pointed out, there being no brief on file for the appellees. The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to overrule the demurrer to the complaint.