B., C. R. & M. R. v. Stewart

Miller, Oh. J. i.. ESTovvEL; taxation: railroad. The notice given of the election at which-the question of “ taxation,” or “ no taxation,” was to be voted upon, contained the following language, to-wit:JL > > , . . ° ° ° “ E ow, therefore, .notice is hereby given that, at-West Union, in said township, on the 16th day of August, A. D., 1871, a special election will be held, at which the polls' will be open as provided for general elections,” etc. The counsel for ajipellee insist that this does not sufficiently specify the place where the election was to be held. We do not deem it necessary to pass upon this question, for we think, upon the' facts alleged in the petition and admitted to be true by the demurrer, that defendant is not in a position to take advantage of this defect in- the notice, if it be such. The tax was voted in August, 1871; more than two years elapsed since it ivas voted before this suit was commenced; the plaintiff has proceeded upon the faith that it was to receive this tax in due: time, and has complied with all the conditions upon which it* was to become entitled thereto, has expended more than > double the amount of the tax in constructing its road through the township voting the tax, which-it would not have done but-for the promise of the people that the tax should be paid when the plaintiff had performed its part of the contract. During all this time the tax payers and citizens of the township, seeing and knowing that plaintiff was expending its money within the township in the construction of a public improvement which was to benefit their property, stand by and make no complaint or objection that there was a technical defect in the notice of the election, which could have worked no prejudice, since a majority of all the voters in the township, voted in favor' of the tax. It would be manifestly against every principle of justice to allow the tax-payers of the town-ship, through the defendant, to escape liability from a tax voted by the citizens at an election authorized by law for so slight a defect, if it be one, under the circumstances stated. This conclusion is well sustained by authority. See Johnson v. Stark County, 24 Ills., 75; Commonwealth ex rel. v. [271] Thomas, 32 Penn. St., 218; Chapman et al. v. M. R. R. Co., 6. Ohio St., 119; The Mahaska Co. R. Co. v. The D. V. R. Co., 28 Iowa, 437; Hellenkamp v. City of Lafayette, 30 Ind., 192; Palmer v. Stumph, 29 Ind., 329; Mortz v. City of Detroit, 18 Mich., 496; Brown v. Bowen, 30 N. Y. 519;. Young v. Bush, 8 Bosw., 1; State v. Van Horn, 7 Ohio St., 327; Prettyman v. Supervisors of Tazewell Co., 19 Ills., 406; Zabriskie v. C. C. & C. R. Co., 23 How., 381; Mayor of Pittsburg v. Scott, 1 Penn. St. 309. In this conclusion Mr. Justice Beck does not concur. II. The third ground of demurrer is that it does not' appear by the petition that the requisite proof was made to' the treasurer, etc., under Chapter 2, Laws of 1872. The, fifth section of that act is as follows: “ That when it' is certified to the county treasurer or township collector, by the trustees of any township, or the trustees or council of any incorporated city or town, that the railway company has, in all respects, complied with the statutes and with all con-: tracts and agreements referred to in section two of the act relative to such tax, and is entitled thereto, it shall be the., duty of such treasurer or collector to give sixty days’ notice thereof by publication in some newspaper published- in the county, and if there be no such newspaper, by posting three notices thereof in each township, city or town, from which said tax is to be collected, and from the time of giving such notice said tax shall become delinquent, and not before.” It was held by this court in Harwood et al. v. Case, Treas., etc., Dec. Term, 1873, that this section suspending the collection of the tax until the railroad company shall become entitled to it, is not unconstitutional, although retrospective; and it was further held that a petition, which fails to allege that the proof required by this section was made to the treasurer or township collector, is bad on demurrer. In that case there was no allegation whatever.that such proof had been presented. We think, however, that in this case the petition is not vulnerable to this objection. The allegations of the petition in this respect are that, “ prior to the commencement of this action,; due proof had been made to the defendant that the plgi/ntiff ■ [272] had, in all respects, complied with the conditions, reservations, and agreements upon which said tax was voted to the plaintiff, and all the conditions upon which it was to be paid over to the plaintiffetc. The substance and effect of the averments are that the plaintiff has furnished to the treasurer legal proof of every fact required by the law to entitle it to have the tax collected and paid over. The petition does not specify all the particular items of evidence which are required, but it avers the fact that the requisite proof has been furnished. This averment is confessed by the demurrer, and, if it be conceded that the averment is not sufficiently specific, it is sufficient on demurrer. The averment of the petition is that the necessary proof was made that all the conditions upon which the tax was to be paid had, in all respects y been complied with. Now the statute, in prescribing how this proof shall be made, does not make it necessary to allege that i,t was made in that form or manner. The allegation that the requisite proof was made is sufficient. The demurrer was improperly sustained, and the judgment of the Circuit Court must be Reversed.