M. & I. S. R. v. Hiams

Adams, Oh. J. I. The appellant insists, in the first place, that the demurrer should have been overruled for the reason that it is not sufficiently specific. Code, section 2649, provides that the demurrer shall specify the ground of the objection taken. The demurrer in this case does specify the ground of objection, and is, we think, sufficient in that respect. II. The petition avers that the certificates of the elections were made in due form of'law. It .is claimed by the appellant that this averment is admitted by the demurrer. The whole ’-petition, however, must he construed together. The certificates having been set out and referred to as a part of the petition, we must take the form of them so shown as conclusive upon that point, and regard the averment in respect to clue form as a conclusion of law. i. taxation : in aid of railíoatef ofCoíerk of election. III. The statute under which, the tax was voted, chapter 123 of the laws of Sixteenth General Assembly, provided what shall be certified by the clerks of the elec- " ^10ns to auditor, as a condition precedent to the levy 0f the tax. The certificate must show “ the rate per centum of tax voted, * * * the year or years during which the same is to be collected, and the time and terms upon which the same, when collected, is to be paid to the railroad company under the conditions and stipulations in the notice, together with an exact copy of the notice under which the election was held.” The certificates in 'this case showed the rate per centum of tax voted, but did not show the conditions provided in the statute except by reference to the notice of the election, which is attached as an exhibit to the certificate, and referred to as constituting a part thereof. [503] ■ As the conditions are necessarily embraced in tbe notice, and as the notice is referred to as a part of tbe certificate, it is insisted by tbe appellant tbat tbe conditions are embraced in tbe certificate. There is certainly much force in this view, and we should be inelined to sustain it but for tbe fact tbat tbe legislature provided tbat tbe conditions shall be embraced in tbe certificate, and an exact copy of tbe notice be set out -also. We cannot dispense with a legislative provision so clearly expressed, merely upon tbe ground tbat it seems superfluous. Besides, we are not prepared to say that it is superfluous. Tbe certificate is to-be recorded. It and tbe record are to become tbe evidence of tbe rights and obligations of tbe respective parties. We are inclined to think tbat tbe care evinced by tbe provision, to guard against mistakes and accidents, is not greater than tbe importance of tbe matter demanded. It appears to us, therefore, tbat tbe demurrer was properly sustained. Aeeirmed.