Nixon v. Campbell

Elliott, J. Marshall Nixon is the sole appellant, those who were co-parties with him in the court below having refused to join in the appeal. As he is the sole appellant, the only errors which would warrant a reversal are such as affirmatively appear to have prejudiced his substantial rights, and as the record shows that the judgment against him rests entirely on the second paragraph of the complaint, he was not prejudiced by the rulings on the first paragraph, even if they were wrong. It is, therefore, neither necessary nor proper for us to discuss the rulings on the first paragraph of the complaint, and. we pass them without further notice. The second paragraph of the complaint alleges that the plaintiffs are taxpayers and citizens of VanBuren township, Fountain county; that at the June session, 1877, the board of commissioners, pursuant to a petition of twenty-five freeholders previously filed, ordered that a donation of $17,700 be made to the Frankfort and State Line Railroad Company, to aid in constructing a railroad through the township; that the board ordered a levy of a tax to pay the amount donated, and directed that it be placed upon the duplicate; that “the company failed to locate its line of railroad, or to commence work thereon, in said county or township within three years from the levying of said tax; that the company failed for more than three years after the tax was placed upon the duplicate of the county to expend in the actual construction of the road in the said townshij) an amount of money equal to the amount of the donation; that the company had failed to complete its road for use through the township at the time this action was commenced, although five years have elapsed .since the 7th day of March, 1877, and .that no extension of time has been granted to the company by the board of commissioners. It also appears from the statements of the com [49] plaint that the tax has been placed on the duplicate, that the treasurer threatens to collect it, and asserts that it is a lien upon the property of the plaintiffs. An injunction restraining the collection of the tax is prayed. The grounds upon which the validity of the tax is assailed are these: 1st. The failure to locate the railroad through the township until April, 1881. 2d. The failure to expend in the construction of the road a sum equal to the amount of the donation, within three years after the tax was placed on the duplicate. 3d. The failure to complete the railroad through the township within five years from the 7th day of April, 1877. In our opinion the first of these grounds is not available. There are two reasons for this conclusion: First. The failure to locate the road within a prescribed time is not made a cause of forfeiture by the statute. Second. The order placing the tax on the duplicate decided that the road was located, and this decision can not be collaterally impeached. Of these in their order. First. There is much confusion and very serious conflict in the statutes upon the subject of voting aid to railroad companies, but in the careful and exhaustive opinion in Board, etc., v. Center Township, 105 Ind. 422, the statutes are fully considered and a clear exposition of their meaning given. We do not deem it necessary to again discuss the question, but content ourselves with affirming that the opinion in that case satisfactorily shows what statutes are in force, whát are causes of forfeiture, and how forfeitures maybe declared. It is evident from the reasoning in that case, that the failure to locate the road within a prescribed time is not a cause of forfeiture, provided the road is actually completed and the prescribed sum of money expended in its construction within the limits of the township. Possibly, an injunction would lie to prevent the commissioners from placing the tax on the duplicate [50] until the location of the road, but, after it is completed through the township, and after the prescribed sum of money has been expended within the township limits, the collection of the tax can not be enjoined on the ground that the road was not located within a limited period. Second. The order of the commissioners placing the tax on the duplicate is conclusive as to the fact of the location of the railroad within the limits of the township. This point is so decisively and thoroughly settled that discussion would be out of place. Bish v. Stout, 77 Ind. 255; Faris v. Reynolds, 70 Ind. 359; Board, etc., v. Hall, 70 Ind. 469; Hilton v. Mason, 92 Ind. 157, see p. 164. The second ground asserted in support of the relief sought is not a tenable one. The provision of the act of 1869 is: “No donation of money shall be made to any railroad company by such board of county commissioners until the railroad to be constructed shall have been permanently located, aüd work thereon done and paid for by the company equal to the amount of the donation then made.” R. S. 1881, section 4060. Conceding, but not asserting, that this statute is still in force, it would not avail the ¿ppellees, for it is clear that the word “ donation ” is used as signifying payment. Any other construction would overturn all the statutory provisions upon this subject. The vote and the order for the tax precede the expenditure of money, and it is plain that the Legislature did not intend that the decision upon the vote and the order for the tax should not be made until after the railroad company had expended a sum equal to the amount of the donation. It is obvious that until the order is made the amount of the donation could not be known, and the company could not, of course, be held bound to know what was not known to any one. But we are unable to perceive how it is possible to harmonize the provision we have quoted with.the provisions of section 2 of the act of March 11th, 1875. That section contains, among others, the following provision: “And if [51] said railroad company shall not, within five years after said tax has been placed upon the duplicate for collection in the proper county, have expended, in the actual construction of said railroad in said county or township, an amount of money equal to the amount of money to be donated to or stock to be taken in said railroad company by said county or township, the board of commissioners may, in its discretion, make an order anulling and cancelling such subscription of stock or donation of money, upon the application of twenty-five freeholders.” Filed Jan. 20, 1886. The provisions we have quoted require that a declaration of forfeiture shall be made by the board of commissioners, so that, in this respect, at least, they are inconsistent with the provisions of the former statute, and, under many decisions of this court, it must be declared that to that extent the earlier statutes are repealed. Board, etc., v. Center Township, supra; Sellers v. Beaver, 97 Ind. 111; State, ex rel., v. Board, etc., 92 Ind. 499; Caffyn v. State, ex rel., 91 Ind. 324; Board, etc., v. Indianapolis, etc., R. W. Co., 89 Ind. 101; Wilson v. Board, etc., 68 Ind. 507. These decisions also require us to hold, as we do, that unless there is an adjudication by the board of commissioners, in the manner provided by statute, declaring a forfeiture because of a failure to make the expenditure prescribed, the collection of the tax can not be enjoined. The third ground relied upon by the plaintiffs as entitling them to an injunction is also disposed of by the cases to which we have referred, for those cases, decide that the failure to complete the railroad within the time prescribed will not, without a declaration to that effect by the board of commissioners, work a forfeiture of the rights of the railroad company. Judgment reversed, with instructions to sustain the demurrer of the appellant to the second paragraph of the complaint.