Curry v. Bd. of Supervisors of Decatur Co.

• Decision Date: 20 April 1883
• Citation: 61 Iowa 71,15 N.W. 602
• Parties: CURRY v. BOARD OF SUPERVISORS OF DECATUR CO. AND ANOTHER.
• Court: Iowa Supreme Court

61 Iowa 71

15 N.W. 602

CURRY

v.BOARD OF SUPERVISORS OF DECATUR CO. AND ANOTHER.

Supreme Court of Iowa.

Filed April 20, 1883.

Appeal from Decatur district court.

The plaintiff, a resident and tax-payer of Franklin township, in Decatur county, Iowa, for himself and other tax-payers of said township, brings this action to enjoin the collection of a 5 per cent. tax voted in said township on the thirteenth day of September, 1879, to aid in the construction of the Missouri, Iowa & Nebraska Railroad. The case was tried in August, 1881, and a decree was entered enjoining the collection of said taxes as prayed for in the petition. The railway company appeals. The facts appear in the opinion.A. J. Baker and Harvey & Young, for appellant.

Stewart Bros. and Bullock & Huffman, for appellee.

DAY, C. J.

The evidence is quite voluminous and is very conflicting. We cannot undertake to do more than to set forth the facts which seem to us to be established by the preponderance of the testimony. Prior to the year 1879, the Missouri, Iowa & Nebraska Railway Company had constructed and in operation a line of railroad from Keokuk to Corydon, the purpose of the company being to construct its road westward to some point on the Missouri river. In 1879 the company determined to commence the extension of its road westward from Corydon 30 miles, and in pursuance of this purpose caused two routes to be surveyed. One of these lines ran through Benton and Clay townships, in Wayne county, and High Point, Woodland, Center, Decatur, Grand River, and Richland townships, in Decatur county. The other line ran through Benton and Richmond townships, in Wayne county, and Garden Grove, Franklin, Long Creek, and Richland townships, in Decatur county. One of these routes became known as the Leon route, and the other as the Garden Grove route. The object of the company was to procure local aid on one of these routes by the voting of taxes and by private subscription sufficient to grade, bridge, and tie the road.

The survey on the Garden Grove route passed through section 16, in Franklin township, within one-half mile of the center of the township. On the eighth day of September, five days before the election was held in Franklin township, Gen. F. M. Drake, the president of the Missouri, Iowa & Nebraska Railroad Company, made a speech in the interest of the tax at Prairieville, in Long Creek township, at which many of the voters of both Long Creek and Franklin townships were present. In this speech he said in substance that if the road was constructed through those townships, the surveying was all done except straightening up the line a little, and that the road would not be varied from the line already surveyed more than 100 feet. He also said that he had no authority to locate the line; that this would be done by the board of directors, when the various results were reported to them; but from the whole testimony we think that what he said was likely to be understood, and was understood, by his hearers as a statement that he had no authority to decide between the Garden Grove and Leon routes. The election in Franklin township was held on the thirteenth day of September, 1879, at which 68 votes were cast “for taxation,” and 55 votes were cast “against taxation.”

Soon after the tax was voted a surveying party was sent out, which surveyed a new route, called the Humeston route. The survey on this line merely passes through the northern side of Franklin township. On the twelfth day of March, 1880, a resolution was passed by the board of...