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Held, on demurrer, that such certificate and return sufficiently identify the notice.

An election having been held in each of several townships, having only one voting precinct, as to a proposed appropriation to the same railroad, the inspectors of each township afterward met jointly with the auditor and canvassed the vote of each township.

Held, that, under section 8, of the act of May 12th, 1869, 1a R. S. 1876, p. 736, the inspector and judges of each township, or some two of them, acting only for their own township, were necessary to constitute the legal board of canvassers of the vote thereof.

Held, also, that the fact that the inspectors of the elections held in the other townships aided in canvassing the vote of any such township neither aided nor invalidated such canvass, and that such canvass stood simply as one made by the proper inspector, aided by the county auditor as his clerk.

Held, also, that neither the election nor the tax voted and levied were invalidated by such irregular canvass. Mustard v. Hoppess, 69 Ind. 324.

The acts of de facto deputy assessors, in raising the valuation of property listed for taxes, are not rendered invalid because they may have been legally disqualified from acting as deputies by reason of their holding other offices.

When a question of valuation for taxation has been once regularly referred to the proper board of equalization, the valuation of that tribunal is final.

A deputy assessor, who was also a county commissioner, sat as a member of a board of equalization to revise the assessment of property for taxes, to which board the question of valuation was referred on the protest of a taxpayer. Held

1. The action of the board of equalization was not void, the taxpayer not objecting at the time to the deputy assessor constituting a portion of the board, and it not being shown that there was not a quorum of the board without the deputy assessor.

A charge in a petition for injunction to restrain the collection of taxes, that the board of equalization added to the assessment property not owned by the taxpayer, will be disregarded when it is at the same time shown that the amount of taxes first assessed against the taxpayer for the same species of property is not thereby increased by the board of equalization.

The limitation imposed by the constitution of 1876, on the power of counties to levy taxes, applies only to the erection of public buildings. For the purpose of paying the interest and providing a sinking fund to satisfy any indebtedness existing at the adoption of the constitution of 1876, counties are authorized to levy, assess and collect taxes to the necessary amount. Const., art. XI, sec. 6; art. XIII, sec. 9.

Though the tax authorized by act of the 15th legislature (ch. 80, pp. 89, 90) to pay indebtedness to teachers, was one on school districts separately, and not on counties, yet where a tax of onesixth of one per cent was levied on the entire county, and that was the amount due from each school district after comparing the indebtedness of the district with the amount of its taxable property, the tax, though irregular, was sustained. Texas & Pacific R. R. Co. v. Harrison Co., 54 Texas, 120.

This court concurs in opinion with the Supreme Court of Illinois that sect. 5 of art. 9, of the Constitution of that State of 1848 imposes a limitation on the power of the legislature to authorize taxation by the municipal corporations or the political subdivisions of the State.

A congressional township is by the laws of Illinois merely a corporation for school purposes. It cannot, therefore, subscribe for stock in a railroad company, and issue its bonds in payment, nor levy a tax upon persons and property within its jurisdiction, to aid in building railroads. Weightman v. Clark, 103 U. S. 255.

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A party who, under proceedings to enforce the statutory lien of the State of Tennessee, purchases a railroad does not acquire therewith the immunity from taxation thereon which the railroad com+ pany possessed.

Where the case stands on demurrer to his bill, which prays that the collection of taxes on the property be restrained, and avers that the sale was under those proceedings, this court will not, in the absence of a particular allegation to the contrary, presume that the sale embraced anything not covered by that lien. Morgan v. Louisiana (93 U. S. 217) cited and approved. Wilson v. Gaines, 103 U. S. Reps. 417.

Where a lot is returned by a railroad company in its list as being used for tracks, side-tracks, etc., in connection with the road and for railroad purposes, and the board of equalization assess the same, upon which the taxes are levied and paid, an assessment by the local assessor of the same lot will be a double assessment, and the tax extended upon the latter assessment will be illegal.

Where only a portion of a lot is used for railroad purposes, to that extent it is properly returnable to the board of equalization for assessment, and if any portion is not used as railroad track, and is properly assessable by the local assessor, he should so describe it as not to embrace any portion of that which is assessable as track, and thus avoid a double assessment. Chicago, etc., R. R. Co. v. People ex rel., Weber, 99 Ill. 464.

A county treasurer, by public advertisement, called for the payment of a railroad subscription tax, and threatened to enforce its collection by levy and sale. Under this call, a taxpayer paid, un

der protest, the amount demanded of him, and then brought action for its recovery under the provisions of "An act to facilitate the collection of taxes." 16 Stat. 785. At the trial, the county treasurer testified that he had been forbidden by the comptroller-general to enter these railroad subscription assessments upon the tax duplicate, and that he collected only as agent for the railroad company.-Held, that the presiding judge erred in granting a nonsuit. Cade v. Perrin, 14 Shand. 1.

The result of a suit for the taxes of particular years is not res judicata in subsequent suits between the same parties for taxes of other years, and the decisions upon legal questions arising in the first case are important only as precedents.

Where a statute requires a corporation to be taxed at a certain rate upon its capital and on loans employed in the State, and the Auditor-General merely computes the amount of the tax on the basis of reports made to him by the company, but without passing judgment upon their correctness, the State is not precluded from enforcing payment of the correct amount.

The State is not concluded by the mere non-action of one of its officers, if he has not ascertained the facts and passed judgment. Where both parties desire, and the public interest demands, that a court pass upon the merits of a case, and preliminary objections do not go to the jurisdiction, the main case may be disposed of.

A railway company is taxed, not for the face of the bonds upon which it negotiates a loan, but for the amount of the loan.

Stock dividends and issues of stock proportioned to that previously held by shareholders, must stand on the same footing with original stock, and should be taxed as far as it is considered paid in.

The general railroad law, in permitting the consolidation of railroad companies within the State with others beyond its boundaries, contemplates leaving the domestic company in its original position as to stock and loans, and annexing to its capital and loans those additions which are made proportional to the original amounts.

Interest upon money withheld is allowed either because there is an express or implied promise to pay it, or as damages; but no promise can be implied until the principal falls due, and it is not allowable as damages if there has been no final understanding as to how much is to be paid.

Interest upon the amount of a tax which it is claimed should have been paid, cannot be allowed where the amount claimed has never been levied and is not therefore in default. Lake Shore, etc., R. R. Co. v. State, 44 Mich. 193.

INDEX.

THE mode of citation of the volumes of the American and English Railroad
Cases will be as follows:

AGENT.

6 Am. and Eng. R. R. Cas.

1. Whether the station agents along the line of a railway have authority to
bind the company by contracts to furnish cars for the transportation of prop-
erty is a question of fact and not of law, nor can courts take judicial notice
that such agents possess such power, or are held out to the world as possess-
ing it; and it is error to reject_testimony offered to prove they have such
power. Wood v. Chicago, etc., R. R. Co. 314.

2. The law will regard station agents as fully authorized to make contracts
for future transportation of property, and there is no necessity for the shipper
to prove that the station agent was authorized by the railroad company to
make the contract for transportation. Id.

3. S., the regular agent of the defendant at a certain depot, lived three miles
from the depot, and T. lived at the depot for two years prior to the bringing
of the action, and discharged the duties of agent in receiving and forwarding
freight, selling tickets, etc., all of which was done in the name of S. and with
the knowledge and acquiescence of defendant. It was held, that T. was the
agent of defendant, and that defendant was bound by any act of his within the
scope of the authority impliedly given. Katzenstein v. Raleigh, etc., R. R. Co.
464.

4. Plaintiff, station agent of a railroad company, sues the company in dam-
ages for breach of an alleged contract in failing to furnish a train for an excur-
sion. Upon correspondence had, the company supposed the train was intended
for a third party and agreed to supply it on certain terms, but afterwards re-
fused on discovering that plaintiff was attempting to procure it for his own
benefit. Held, that plaintiff could not from his fiduciary relation towards the
company enter into a binding contract with it for such purpose, unless it agreed
thereto after being fully advised of all the circumstances. Pegram v. Charlotte,
etc., R. R. Co. 470.

See CARRIER, 68, 85, 86.

ALLOTMENT OF STOCK, 492.

ANIMALS.

See CORPORATION,

1.

1. A demand in writing only for value of stock is not sufficient. The defend-
ant need not allege that it was free from all fault or negligence. Central Branch
U. P. R. R. Co. v. Walters, 580.

2. A railroad is bound to fence against stock on the highway. Evansville,
etc., R. R. Co. v. Barbee, 580.

3. Recovery can be had only for the value of stock of the time of killing. No
interest can be added. Houston, etc., R. R. Co. v. Muldrow, 580.

4. Where the owner of stock is guilty of contributory negligence, he cannot
recover. Kansas City, etc., R. R. Co. v. McHenry, 581.

5. The owner of stock cannot recover for injuries resulting alone from his
concurrent disregard of statute obligations. Kansas Pacific R. R. Co. v. Landis,
581.

ANIMALS-Continued.

6. In action for killing stock, service according to statute must be clearly
shown. Instructions in case regarding duty to fence. Held, error without prej-
udice. Keyser v. Kansas City, etc., R. R. Co. 581.

7. An action may be maintained against a railroad company for injury to
stock, committed while the company was in the hands of a receiver. Kansas
Pacific R. R. Co. v. Wood, 582.

8. A judgment will not be reversed on the ground that it does not appear
that the stock was killed within the county. Kansas City, etc., R. R. Co. v.
Phillibert, 582.

9. In an action for killing stock the bill of particulars may be amended pend-
ing appeal. Allegation regarding fence held sufficient. Missouri Pacific R. R.
Co. v. Piper, 583.

10. Recovery cannot be had for stock killed at a public crossing, under the
43d section of the Missouri R. R. law. Sullivan v. Hannibal, etc., R. R. Co.
583.

11. Railroads are liable for injuries to stock, to occupants as well as owners
of adjoining lands. An embankment held not sufficient protection. Veerhusen
v. Chicago, etc., R. R. Co. 583.

12. The fact that stock was killed is presumption of negligence on the part
of the railroad. Western, etc., R. R. Co. v. Steadly, 584.

13. A railroad is not liable in double damages where the stock is killed in
an attempt to extricate it from a trestle. Seibert v. Missouri, etc., R. R. Co.
584.

14. The mere fact of killing held to be no evidence of negligence. Undue
speed of train within city limits depends upon locality. B. & M. R. R. Co. v.
Went, 584.

15. Where a cow was found dead beside the track, and there were blood and
hair upon the track near by; held, sufficient to submit the case to the jury.
Blewett v. Wyandotte R. R. Co. 579.

TRANSPORTATION OF, 194.

See CARRIER, 1, 2, 41.

SPECIAL CONTRACT TO CARRY, WAIVES LIABILITY OF CARRIER.
See CARRIER, 42.

ANSWERS TO INTERROGATORIES, 84.

See PLEADING AND PRACTICE, 20.

ATTACHMENT.—PROPERTY MUST BE IN CARRIER'S HANDS AND WITHIN
THE COUNTY AT TIME OF SERVICE, 368.

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See PLEADING AND PRACTICE, 20.

BILL OF LADEN-EXEMPTING CARRIER FROM LIABILITY, 349.

See CARRIER, 22–24, 26.

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