Demaree v. Bridges

• Decision Date: 09 December 1902
• Citation: 30 Ind.App. 131,65 N.E. 601
• Parties: DEMAREE et al. v. BRIDGES, County Treasurer, et al.
• Court: Indiana Appellate Court

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 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 taxpayers in said Pleasant township, in voting said tax, believed it would do, but has in fact constructed what is known as an ‘electric interurban street railway,’ running from the city of Indianapolis to the city of Franklin, Johnson county, Indiana. Plaintiffs state that the said railroad company has not prepared, and does not intend to prepare and equip, its road, by the purchase of proper rolling stock, to enable it to carry miscellaneous freight, and in fact does not, and has not intended to, carry freight between the cities of Indianapolis and Franklin, and that said tax is wholly illegal and void. Wherefore,” etc. To this pleading a demurrer for want of facts was sustained, and, refusing to plead further, judgment was rendered against appellants, from which they appeal, assigning that the court erred in sustaining said demurrer.

A township may, under the provisions of the statute, aid a railroad company in constructing a railroad through such township. Sections 5340-5343, Burns' Rev. St. 1901. Conditions may be annexed to the proposition for such purpose, and, when so annexed, must be complied with, before the money can be used for the benefit of the railroad company. Sections 5340, 5353, 5358, Burns' Rev. St. 1901; Board of Com'rs of Hamilton Co. v. State, 115 Ind. 64, 4 N. E. 589, 17 N. E. 855;Irwin v. Lowe, 89 Ind. 540;Brocaw v. Board, 73 Ind. 543;Board v. Montgomery, 106 Ind. 517-521, 6 N. E. 915. It is not alleged that any conditions were annexed to the aid voted by Pleasant township to the railroad company in question. The legislature have annexed certain conditions to all such donations, and provided that the collection of the tax be suspended until the road is permanently located in the township, and the expenditure of money made in its construction therein equals the amount donated. Section 5369, Burns' Rev. St. 1901. It is further provided in the section last quoted that if such railroad company shall not, within five years after the tax has been...