Adams, J.
The validity of the levy is questioned upon several grounds. In the first place it is insisted that the clerk’s certificate in regard to the result of the election is insufficient. The statute provides that the clerk of the election shall certify to the county auditor the rate per centum of tax voted. It is contended that the certificate does not run to the county auditor. It does not, as we have seen, purport to run to any one, but if it was delivered to the county auditor it must be regarded as made to him. As it was the duty of the clerks to deliver the certificate to him, and of the board of supervisors to act upon it, and as the board acted, we think that we may presume, in the absence of evidence to the contrary, that it was so delivered.
1. taxation : in aid of railroads: certtücate‘ The certificate is further objected to on the ground that it purports to be the certificate of the judges of the election, an<^ n0^ clerks. The plaintiff insists that the certificate purports merely to be attested by the clerks, by which it is said that we are to understand, not that they certify the certificate is true, but that it was signed by the persons by whom it purports to be signed. It may be conceded that this is the ordinary meaning of attest, as applied to an instrument. But we think that in this case the clerks designed to go further. The law required them to make the certificate as their own, and not merely to witness it. We find their names written under the [527]*527“words, “A true return. ” While these words might be referred wholly to the judges, yet if the certificate is reasonably sus■ceptible of a construction w'hich will show a compliance by the clerks with the law, and render it valid, we should give it such construction; and we have to say that we think it is susceptible of such construction.
2. ___:___ lovy It is further objected that the words in which it was attempted to levy the tax are insufficient to make a valid The levy is for “all loans for city purposes, district tax, railroad tax that has been certified .according to law.” It is contended that this is not-an absolute levy of a railroad tax; that it is made subject to its being -determined that a railroad tax had been certified according to law; and that, before it could appear that the tax in question was levied, it should be determined that that tax had been certified according to law. It is further contended that it was the duty of the board to so determine, and that it has not done so.
Properly the levy should be explicit enough to show upon its face what tax is levied. But in view of all that was done it appears to us that we could not hold the levy void without laying too much stress upon matters which are merely formal. This tax, as we have held, was certified according to law. It was the duty of the board to place it in the tax-list. Chapter 102 of the Acts of the Thirteenth General Assembly. It was placed in the tax-list. The only question is whether it was placed there by order of the board. If so, it appears to us that the levy may be taken in connection with that fact and upheld. It is averred that there was no such order, and such must be taken to be the fact, unless there is enough shown to raise a conclusive presumption that ■there was. That there is enough shown appears to us to be clear. If the board -could have been compelled to order done what was done without its order, why should the board be heard to say that it was done without its order? We think it •should not, and for the same reason we think that the plain[528]*528tiff should not. If that is done without the order of the board which the board could have been compelled to order, the law will adopt the act for the board, and consider it as done by its order.
3. —:----: certificate of trustees. Bnt it is contended that, even if the levy is valid, the tax is not collectible. It is said that the township trustees’ ceris insufficient. The language of the certificate is that the company “has so complied with the act as to entitle it to draw the sum of twenty-four thousand nine hundred and eighty-seven dollars and thirty cents. ” The act of 1872, which the plaintiff claims governs the certificate, provides that the trustees shall certify that the company has, in all respects, complied with the statutes; but the company could not become entitled to draw the sum mentioned, or any other sum, without complying with the statutes in all respects. We think, therefore, that the certificate is not liable to the objection taken. It is true that the certificate does not show that the company had become entitled to the whole tax, but that must be because it was not wholly earned, and not because the statutes had not been complied with, if the company had become entitled to a part of the tax.
4. — : —:—: collection in part. But it is said that the earning of a part of the tax does not make the whole compulsorily collectible, and that no part of the tax is thus collectible until the whole is. Section 3 of the act of 1872 provides, in effect, that the tax shall not be collectible by sales until earned; and in Harwood v. Case, 37 Iowa, 692, it was held that the tax is not collectible in instalments. It is insisted, therefore, by the plaintiff that where only a part of the tax apj)ears to be earned, as in this case, the collection of even that part is not to be made forcibly.
To this the defendant replies that section 3 of the act of 1872 is unconstitutional; but that objection was raised to the section in Harwood v. Case, above cited, and the constitutionality of the section was upheld, and in ,that case it was conceded to have a retrospective operation. Not only was the-[529]*529tax voted, but tbe work was done prior to tbe act. In tbe present case the work was done subsequently to the act. It seems entirely clear that the obligation of the contract, if any, in this case was not impaired. No contract in favor of the company arose, except by implication, from the performance of the work, and it could not antedate the performance.
While, therefore, we hold that no part of the tax is collectible by sales until that part is earned, and that the tax is not collectible by instalments, yet it appears to us that a part, if earned, may be collected in satisfaction of the whole. The action of Harwood v. Case was brought expressly to collect a part of the tax as an instalment. In the present ease an order was drawn, and although it was drawn.for a part, it does not appear affirmatively that it was drawn for an instalment. It was certainly not so drawn if the work had been completed, and the order covered all that had been earned, and all that could-be earned. As, then, it does not appear affirmatively that the order was drawn for an instalment, and as it would have been improper and useless if it had been, we may presume that it was not. In our opinion, then, a part of the tax, to-wit: so much thereof as had been earned, was compulsorily collectible. Any other view, we think, would pervert the design of the law. The company expended in Des Moines township a little less than fifty thousand dollars, which would give it a little less than twenty-five thousand dollars of the. tax, the measure of its subsidy being limited by statute to one-half the' amount expended. The one per cent voted amounted to a little more than twenty-six thousand dollars. According to the plaintiff’s theory, if the company had completed its work, and could properly expend nothing more, nothing was then or ever would be due it.
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Adams, J.
The validity of the levy is questioned upon several grounds. In the first place it is insisted that the clerk’s certificate in regard to the result of the election is insufficient. The statute provides that the clerk of the election shall certify to the county auditor the rate per centum of tax voted. It is contended that the certificate does not run to the county auditor. It does not, as we have seen, purport to run to any one, but if it was delivered to the county auditor it must be regarded as made to him. As it was the duty of the clerks to deliver the certificate to him, and of the board of supervisors to act upon it, and as the board acted, we think that we may presume, in the absence of evidence to the contrary, that it was so delivered.
1. taxation : in aid of railroads: certtücate‘ The certificate is further objected to on the ground that it purports to be the certificate of the judges of the election, an<^ n0^ clerks. The plaintiff insists that the certificate purports merely to be attested by the clerks, by which it is said that we are to understand, not that they certify the certificate is true, but that it was signed by the persons by whom it purports to be signed. It may be conceded that this is the ordinary meaning of attest, as applied to an instrument. But we think that in this case the clerks designed to go further. The law required them to make the certificate as their own, and not merely to witness it. We find their names written under the [527]*527“words, “A true return. ” While these words might be referred wholly to the judges, yet if the certificate is reasonably sus■ceptible of a construction w'hich will show a compliance by the clerks with the law, and render it valid, we should give it such construction; and we have to say that we think it is susceptible of such construction.
2. ___:___ lovy It is further objected that the words in which it was attempted to levy the tax are insufficient to make a valid The levy is for “all loans for city purposes, district tax, railroad tax that has been certified .according to law.” It is contended that this is not-an absolute levy of a railroad tax; that it is made subject to its being -determined that a railroad tax had been certified according to law; and that, before it could appear that the tax in question was levied, it should be determined that that tax had been certified according to law. It is further contended that it was the duty of the board to so determine, and that it has not done so.
Properly the levy should be explicit enough to show upon its face what tax is levied. But in view of all that was done it appears to us that we could not hold the levy void without laying too much stress upon matters which are merely formal. This tax, as we have held, was certified according to law. It was the duty of the board to place it in the tax-list. Chapter 102 of the Acts of the Thirteenth General Assembly. It was placed in the tax-list. The only question is whether it was placed there by order of the board. If so, it appears to us that the levy may be taken in connection with that fact and upheld. It is averred that there was no such order, and such must be taken to be the fact, unless there is enough shown to raise a conclusive presumption that ■there was. That there is enough shown appears to us to be clear. If the board -could have been compelled to order done what was done without its order, why should the board be heard to say that it was done without its order? We think it •should not, and for the same reason we think that the plain[528]*528tiff should not. If that is done without the order of the board which the board could have been compelled to order, the law will adopt the act for the board, and consider it as done by its order.
3. —:----: certificate of trustees. Bnt it is contended that, even if the levy is valid, the tax is not collectible. It is said that the township trustees’ ceris insufficient. The language of the certificate is that the company “has so complied with the act as to entitle it to draw the sum of twenty-four thousand nine hundred and eighty-seven dollars and thirty cents. ” The act of 1872, which the plaintiff claims governs the certificate, provides that the trustees shall certify that the company has, in all respects, complied with the statutes; but the company could not become entitled to draw the sum mentioned, or any other sum, without complying with the statutes in all respects. We think, therefore, that the certificate is not liable to the objection taken. It is true that the certificate does not show that the company had become entitled to the whole tax, but that must be because it was not wholly earned, and not because the statutes had not been complied with, if the company had become entitled to a part of the tax.
4. — : —:—: collection in part. But it is said that the earning of a part of the tax does not make the whole compulsorily collectible, and that no part of the tax is thus collectible until the whole is. Section 3 of the act of 1872 provides, in effect, that the tax shall not be collectible by sales until earned; and in Harwood v. Case, 37 Iowa, 692, it was held that the tax is not collectible in instalments. It is insisted, therefore, by the plaintiff that where only a part of the tax apj)ears to be earned, as in this case, the collection of even that part is not to be made forcibly.
To this the defendant replies that section 3 of the act of 1872 is unconstitutional; but that objection was raised to the section in Harwood v. Case, above cited, and the constitutionality of the section was upheld, and in ,that case it was conceded to have a retrospective operation. Not only was the-[529]*529tax voted, but tbe work was done prior to tbe act. In tbe present case the work was done subsequently to the act. It seems entirely clear that the obligation of the contract, if any, in this case was not impaired. No contract in favor of the company arose, except by implication, from the performance of the work, and it could not antedate the performance.
While, therefore, we hold that no part of the tax is collectible by sales until that part is earned, and that the tax is not collectible by instalments, yet it appears to us that a part, if earned, may be collected in satisfaction of the whole. The action of Harwood v. Case was brought expressly to collect a part of the tax as an instalment. In the present ease an order was drawn, and although it was drawn.for a part, it does not appear affirmatively that it was drawn for an instalment. It was certainly not so drawn if the work had been completed, and the order covered all that had been earned, and all that could-be earned. As, then, it does not appear affirmatively that the order was drawn for an instalment, and as it would have been improper and useless if it had been, we may presume that it was not. In our opinion, then, a part of the tax, to-wit: so much thereof as had been earned, was compulsorily collectible. Any other view, we think, would pervert the design of the law. The company expended in Des Moines township a little less than fifty thousand dollars, which would give it a little less than twenty-five thousand dollars of the. tax, the measure of its subsidy being limited by statute to one-half the' amount expended. The one per cent voted amounted to a little more than twenty-six thousand dollars. According to the plaintiff’s theory, if the company had completed its work, and could properly expend nothing more, nothing was then or ever would be due it. If this is so, it was the misfortune of the company that the tax payers were so liberal in their bounty, or that that part of the road cost so little.
[530]*5305 _. _. narrow gauge. [529]*529The plaintiff complains that the road contemplated, and in [530]*530reference to wbicli the tax was voted, was to be of ordinary gauge, and that the one built is of narrow gauge an(j inferior carrying capacity; but it was held in Meader v. Lowry, 45 Iowa, 684, that if such road has sufficient capacity for all the business, and can do it as economically as a road of wider gauge, the tax payers should not. complain. It was so held upon the supposition that the whole tax voted could be collected. Por a still stronger reason it would seem to be so if the tax payers can have the benefit of the road with the payment of less than the whole tax.
When, therefore, the company’s order was presented to the treasurer, covering, as might be presumed, their entire claim, it became his duty to collect such portion of the tax as was necessary to pay it. The amount collected from each tax payer was easily ascertainable. The amount thus duo from each should have been received in satisfaction of the whole.
If the treasurer was proceeding to collect the whole tax, as we think the petition shtfuld be understood as averring, his duty was misconceived by him. But to entitle the plaintiff to the aid of a court of equity to restrain the sale of his property he should have tendered the amount actually due on it. Rosenberry v. Huff, 27 Ind., 12; Bond v. The City of Kenosha, 17 Wis. 284. The only qualification to the rule is that the part due should be readily distinguishable. That it was in this case seems evident. The plaintiff avers in his petition the whole amount of tax and the amount of the order. The amount due from a given tax payer is a mere matter of computation.
We think that the judgment of the Circuit Court must be
Affirmed.