Demaree v. Bridges

Citation30 Ind.App. 131, 65 N.E. 601
Case DateDecember 09, 1902
CourtCourt of Appeals of Indiana

30 Ind.App. 131
65 N.E. 601

DEMAREE et al.
v.
BRIDGES, County Treasurer, et al.

Appellate Court of Indiana, Division No. 2.

Dec. 9, 1902.


Appeal from circuit court, Johnson county; W. J. Buckingham, Judge.

Action by William W. Demaree and others against William A. Bridges, county treasurer, and another, to restrain collection of a tax voted in aid of a railroad. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Transferred from the supreme court. Affirmed.


Miller & Barnett, Harding, Hovey & Wiltsie, and E. A. McAlpin, for appellants. C. F. Coffin, for appellees.

ROBY, C. J.

This action was begun by appellants in the Johnson circuit court. Omitting formal allegations, the material averments of the complaint are, substantially: That plaintiffs are taxpayers of Pleasant township, Johnson county, Ind., and the defendants are the auditor and treasurer, respectively, of such county. On the - day of -, 1895, the voters of said township, at a special election called therefor, voted a tax, by way of donation, in the sum of $34,000, to aid in the construction of the Indianapolis, Greenwood & Franklin Railroad through a part of said township. After the voting of said tax the board of county commissioners levied the same against the property of the taxpayers of said township, and directed the auditor to place the same upon the tax duplicate, and to deliver said duplicate to the treasurer for collection. That such collection was suspended by operation of law until such time as said railroad company should expend in the construction of its said road in said township a sum of money equal to that so voted. That on April 9, 1902, the said railroad company, by attorney, appeared before said board of commissioners, “and showed in due and satisfactory manner to said board that it (the said company) had expended in the construction of its said road in Pleasant township more than the sum of $34,000, and asked an order from said board and the auditor and treasurer of Johnson county, Indiana, requesting said auditor and treasurer to proceed to the collection of said tax at once, as though the collection of the same had never been suspended. That the said board of county commissioners granted the request of the railroad company, and duly entered on their books an order requesting the auditor and treasurer to proceed at once to the collection of said tax.” It is stated that the tax duplicate had already been delivered to the treasurer aforesaid, who, in obedience to said order of the board, unless enjoined from so doing, will proceed to the collection of said tax. Plaintiffs represent and state “that the said tax should not be collected, and that the said treasurer should be enjoined from taking any steps in the collection of the same, for the reason that the said Indianapolis, Greenwood & Franklin Railroad Company is a railroad corporation organized and existing under and in accordance with the general railroad statute of the state of Indiana, providing for the organization of railroad corporations,-said statute having been in force from the 6th of May, 1853,-and acts supplemental and amendatory thereto. Said railroad corporation, under the terms and provisions of the statute under which the same is organized, has no right to build, construct, operate, or maintain any species or kind of railroad whatsoever, except such as is known

[65 N.E. 602]

and designated as a ‘commercial railroad,’ which is a railroad properly equipped for the running of passenger trains, freight trains, and doing and conducting a general freight and railway passenger business. The plaintiff states that the said railroad company has not constructed a commercial railroad, as above described, and as, under the provisions of the law, it was under obligations to do, and as the...

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2 practice notes
  • South Chicago City Ry. Co. v. Zerler
    • United States
    • Indiana Court of Appeals of Indiana
    • December 10, 1902
    ...of Decatur v. Stoops, 21 Ind. App. 397, 52 N. E. 623. The evidence is not in the record. As everything in the bill of exceptions, except [65 N.E. 601]the evidence, seems to have been copied into the transcript, the bill is sufficient to bring the instructions into the record. But in the abs......
  • State ex rel. Kansas City P. & L. Co. v. Smith., No. 34641.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1938
    ...Co., 23 Fed. 469; Carver Mercantile v. Hulme, 19 Pac. 213; Bashford-Burmister v. Aqua-Fria Copper Co., 35 Pac. 983; Demaree v. Bridges, 65 N.E. 601; Denver & R.G. Railroad Co. v. United States, 249 Fed. 822; 4 Words & Phrases, pp. 3569-3570. (b) The State and municipalities have power to ta......
2 cases
  • South Chicago City Ry. Co. v. Zerler
    • United States
    • Indiana Court of Appeals of Indiana
    • December 10, 1902
    ...of Decatur v. Stoops, 21 Ind. App. 397, 52 N. E. 623. The evidence is not in the record. As everything in the bill of exceptions, except [65 N.E. 601]the evidence, seems to have been copied into the transcript, the bill is sufficient to bring the instructions into the record. But in the abs......
  • State ex rel. Kansas City P. & L. Co. v. Smith., No. 34641.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1938
    ...Co., 23 Fed. 469; Carver Mercantile v. Hulme, 19 Pac. 213; Bashford-Burmister v. Aqua-Fria Copper Co., 35 Pac. 983; Demaree v. Bridges, 65 N.E. 601; Denver & R.G. Railroad Co. v. United States, 249 Fed. 822; 4 Words & Phrases, pp. 3569-3570. (b) The State and municipalities have power to ta......

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