89 Ind. 101 | Ind. | 1883
This case was in this court before, and is reported as Indianapolis, Peru and Chicago R. W. Co. v. Board of Commissioners of Tipton Gounty, 70 Ind. 385. In the reported case is found a full copy of the appellee’s complaint, in which no change has since been made. The board of commissioners of Tipton county, under the act of May 12th, 1869 (1 R. S. 1876, p. 736), at its June session, 1870, on proceedings and a vote of the county previously had, appropriated $60,000 to aid in the construction of the Lafayette, Bloomington and Muncie Railroad. To meet this appropriation, it did at the same time levy upon the taxable property of the county a special tax of $30,000, and made a like levy at its June session of the following year. The appellee’s action, commenced October 25th, 1875, in the Tipton Circuit Court and taken by change of venue to the court below, sought to enjoin the collection of this special tax against the appellee,, amounting to $1,746.67. The reported case shows that the appellee’s (then the appellant’s) complaint was held good on the averment that the Lafayette, Bloomington and Muncie Railroad, for whose aid the tax was levied, was not completed and ready for use within three years after the levy. This de
On the return of the case to the court below the appellants filed an answer in two paragraphs. They are of great length and substantially alike, setting out with much particularity all the proceedings in reference to the petition for, the voting and levying of, the special tax in controversy, and showing sufficient compliance with the provisions of the act of May 12th, 1869, to make such tax valid. The averments are also made “that the appropriation to the L., B. & M. R. R. Co. was by subscription to its stock and not by donation; that $50,000 of the tax was collected within three years from the levy and invested in the stock of said railroad; that the residue of the fax, except the appellee’s, was uncollectible by reason of insolvency and removals; that said railroad company, within one year from the levy, expended on work on its road in Tipton county $100,000, and fully completed its railroad
In State, ex rel., v. Wheadon, 39 Ind. 520, the construction of said section 18 was involved. In. that case none of the special tax had been paid. The learned judge who delivered the opinion carefully confined the decision to the case before the court, saying: “fc need not, and do not, decide what would be the rule in cases where some of the taxes have been paid before the forfeiture, and others have not been paid; as in this case, none of the taxes have been paid, and there can be no inequality injuriously affecting-the taxpayers.”
The court below sustained a demurrer, to each paragraph «f the answer, to which the appellants excepted, and have
The judgment of the court below is reversed, and the cause remanded to the court, with instructions to overrule the demurrer to each paragraph of the appellants’ answer, and for further proceedings not inconsistent with this opinion.