Seevers, J.
l. taxation : row gauge/ I. That a railroad has been constructed and operated between the termini mentioned in the notice for the election is not disputed; the ground of corn-plaint being that the gauge is narrow and unusual, [688]*688and that the carrying capacity and power is inferior to the usual and ordinary railway. But it is not averred that the road in question does not secure to the plaintiff and other tax payers all the benefits óf a road of broader gauge. The fact that the gauge is narrower or broader than was contemplated by the voter when he cast his ballot is not alone sufficient to deprive the company of the tax. If this were so, there must in all cases be a literal compliance, and one of a substantial character never would be sufficient. It is, we believe, a matter of controversy between experts in operating railroads whether the usual or a narrower gauge is the better and more economical. If the gauge was deemed important it should have been specified in the notice, and even then we apprehend a substantial compliance would have been sufficient. Jenkins v. B. & M. R. R. Co., 29 Iowa, 255; Cedar Falls & M. R. R. v. Rich, 33 Iowa, 113.
The road constructed, to all intents and purposes, is a railroad, operated in the usual and ordinary manner, it must be presumed, as there is no showing to the contrary. Nor is it averred that it does not in every particular answer the purposes of the tax payers. It is not shown that the charges are greater than on other roads, or that all the business offering cannot be done in the usual manner as performed by other roads that have a broader gauge.
2 _. _. trustees. II. It follows from what has been said the trustees were not guilty of any fraud in certifying that the company had constructed a railroad as contemplated in the notice submitting the question of a levy of the tax. They did no more than they could have been compelled to do by mandamus, as there were no written promises or inducements save the notice of the submission to the tax payers. Harwood v. Quinby et al., 44 Iowa, 385.
The only fraud alleged, as we understand the petition, on the part of the trustees, is that they certified that the road in question was a substantial compliance with the proposition submitted to the tax payers.
[689]*689g • [688]*688III. It was the duty of the trustees to look at and examine the road in question, for the purpose of determining whether [689]*689the road the tax payers had voted to aid had been constructed the termini and on the route mentioned • in the proposition submitted to the voters. The city of Des Moines was one of such termini, and as the certificate was signed there we are not prepared to say it is 'absolutely void. The law fixes no place where such act may be done, and in the absence of any statute we are of the opinion it could be well " done in the city of Des Moines. The trustees were not bound to consult the tax payers. The law cast on them a duty, which they should perform in accordance with their own judgment. In the present case they seem to have so consulted, heard arguments against giving a certificate if not in favor, and arrived at a conclusion that we hold to have been right and proper.
Affirmed.
THE SECOND ACTION
Is in all respects identical with the first, except that the plaintiff therein is a resident of the township of Crocker. • In 1870, and after said tax was voted in the manner provided by law, Lincoln township was carved out of said township of Madison and duly formed, and at the same time the township of Crocker was formed, and it is partly composed of territory which formed a part of said Madison township at the time said tax was voted, and it is urged that the trustees of neither of the townships of Lincoln or Crocker have given the certificate required by law.
"We are of the opinion this point is not well taken. The only certificate required by law is that of the trustees of Madison township.
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