Yarish v. Cedar Rapids, Iowa Falls & Northwestern R'y Co.

34 N.W. 417, 72 Iowa 556

• Court: Supreme Court of Iowa
• Decided: October 12, 1887
• Status: Published

Opinion

Rothrock, J.

i. appeai: to1:°personsd tSsS:*p°artyr" notpreju-diced. I. The plaintiff entitled his petition as follows: “ John Yarish, for himself and others, v. The Cedar Rapids, Iowa Falls & N orthwestern Railway Company and othersHe averred in his petition that he prosecuted the action for him- .. , „ , . , . . sell and all the other tax-payers m the township; that the said tax-payers were too numerous to name specifically in the petition. He appended a list of the names of some of the tax-payers to the petition, with the amount of tax assessed to each, and claimed that for them he was authorized to prosecute the action. The defendants, by their motion, demanded that all that part of the petition by which the plaintiff claimed to represent others be stricken out, and the motion was sustained. The effect of the ruling on the motion was that all that part of the petition by which Tarish attempted to maintain an action for others not named as plaintiffs was stricken out, and he was recognized as the sole and only plaintiff. The notice of appeal is not set out in the abstract. It is stated, generally, that “ the plaintiffs appeal.” If by this it is meant that the persons for whom Tarish brought the suit appeal, the appeal will not lie. Fleming v. Mershon, 36 Iowa, 413. And it is very plain that, so long as Tarish is allowed to prosecute his action without let or hindrance, he has no right to appeal for others. His liability to pay the tax assessed upon his property is distinct and several. If every other tax-payer in the township should pay his tax without suit, Tarish has the right to resist payment, and show, if he can, that the tax is illegal.

2 railroads1 sHfliíi’iíoyof piotion ocr iiaUonp£Sli? teiuum. II. It was alleged in the petition that the notice under which the taxes were voted did not provide nor fix any point the railway was required to be fully completed before the taxes ’should be due and collectible. A copy of the notice is exhibited with the petition, and that part of it material to ^ consi¿ere¿ js as follows: “(1) Said Cedar Rapids, Iowa Falls & Northwestern Railroad Company shall be actively at work in the construction of its line of railroad across the said east part of Hancock eonnty, via Garner, on or before the first day of June, 1884. (2) Said Cedar Rapids, Iowa Falls & Northwestern Railroad Company shall have its line of railroad ironed, and cars running thereon, across said east part of Hancock county, Iowa, via Garner, on or before September 1, 1884, from the south line of said Hancock county, via Garner’, to a connection with, or'crossing of, the Minneapolis & St. Louis Railroad. If the above conditions are fully complied with, then the said tax shall be due and payable to said railroad company as above provided; and if the said conditions shall not be fully complied with as above provided, said tax shall be forfeited, and become null and void.”

The motion attacking, the petition involved the question as to the sufficiency of this notice to authorize the levy of a tax. The district court, by its ruling on the motion, held that the notice was sufficient, and the appellant complains of such ruling. It is required by section 2 of chapter 123, Acts Sixteenth General Assembly, under which the taxes in question were voted, that the notice shall specify “ the line of railroad proposed to be aided, the rate per centum of tax to be levied, and whether the entire per centum voted is to be collected in one year, or one half collected the first year and one-half the following year; and the amount of work upon said proposed railroad line required to be completed before said tax shall be paid to the railroad company, and where the same shall be performed, and to what point said road shall be fully completed, and any other cenditions which shall be performed before such tax shall become due, collectible and payable; and in no case shall such tax become due, collectible or payable until the road be fully completed to such point as mentioned in the notice.” It cannot be claimed that the notice is insufficient for the want of a proper description of the road to be aided by the tax. In Burges v. Mabin, 70 Iowa, 633, we held that a similar notice sufficiently specified the line of the railroad, and the point to which it should be constructed before the tax became payable.

But appellant insists that the notice is insufficient, because it does not require that the road shall be “fully completed” to the point named. It is claimed that in this respect the case is like Allard v. Gaston, 70 Iowa, 731, where we held that a tax was void because the notice did not specify to what point the road should be fully completed before the tax could be collected. But the decision in that caséis not based upon any peculiarity in the language employed in the notice as to what is a completion of the road. It rests wholly upon the fact that no point is specified in the notice to which the road shall be constructed or completed. It was not determined in that case that a notice, as in tbe case at bar, specifying tbe point to wbicb tbe “ railroad company shall have its line of railroad ironed, and cars running thereon,” is not a substantial compliance with tbe statute. Tbe evident object of tbe provision of tbe statute under consideration is that tbe tax-payer shall not be required to contribute to a partly-constructed railroad. Tbe only benefit be derives from tbe road is in its operation. When tbe road is constructed, and tbe cars running thereon, it is a substantial compliance with the law. It is true that it is necessary for tbe railroad company to erect station-houses, surface tbe track, and make other improvements for tbe convenient transaction of its business as a carrier. But when tbe track is laid, and tbe cars running thereon for tbe purpose of traffic in freight and the carrying of passengers, we think that, as to the public, it should be regarded as a completed line. If tbe construction contended for by counsel be correct, tbe payment of a tax of this kind would in most cases be deferred for several years after tbe road is in operation. A railroad is not now regarded as fully completed until its track is thoroughly ballasted, and all tbe buildings and appliances for a supply of fuel and water for its engines are completed. These and other parts of a completed road are not what was in contemplation by tbe legislature in providing that tbe taxes should not be paid until the road is built.

In our opinion, tbe motion attacking tbe petition was correctly sustained. Affirmed.