
    McGregor and Sioux City R. R. Co. v. Birdsall.
    1. Demurrer: indeeiniteness. A demurrer to a petition for manda mus, based on tire ground that the petition does not state facts sufficient to constitute a cause of action, is too indefinite.
    2. Railroad: taxation. The county treasurer cannot refuse to pay over a tax in bis bands petitioned, voted for and collected under tbe act of 1868, enabling townships and cities to aid in tbe construction of railroads, on the ground tbat such tax was levied and collected under an unconstitutional law. Said act is constitutional.
    Following the construction given to the act of 1870, in tbe case of Stewwi't v. The Boa/rd of Supervisor’s, ante.
    
    3. -mandamus. The writ of mandamus may be properly invoked to compel tbe treasurer to pay over tbe tax thus collected to the railroad company entitled thereto under tbe law.
    
      Appeal from Ohiclcascm District Oourt.
    
    Wednesday, December 14.
    On the 3d day of January, 1870, the plaintiff filed in the Chickasaw district court, a petition, stating that a five per cent tax was, under the act of 1868 enabling townships and cities to aid in the construction of railroads, petitioned for, voted upon, levied and certified to the clerk of the board of supervisors, from New Hampton township, Chickasaw county, Iowa, and that the tax was entered upon the tax books of said county for collection. The petition further avers as follows: “ And when so transcribed, the said county clerk placed the same in the hands of W. W. Birdsall, county treasurer of Chickasaw county, Iowa, for collection, whereupon the said W. W. Birdsall proceeded to collect said railway tax as aforesaid * * and did collect of said tax a large sum of money * * which the said Birdsall reports to be between two and three thousand dollars, all of which was paid voluntarily and without process of law. Tour relator further shows that the Mc-Gregor and Sioux City Railway Company have constructed a railroad across said New Hampton township, and have erected a depot within one mile of the village of New Hampton, and have performed all things required of them either in law or by agreement, to entitle them to receive said tax so collected, under the conditions upon which said tax was granted, petitioned for, voted and levied.
    Tour relator further shows that * * the said W. W. Birdsall, treasurer as aforesaid, refused to pay over said money, so collected as said tax, to the legal representatives of the McGregor and Sioux City railway, and, although often requested, still refuses to pay over said tax.
    Tour relator further states that your relator is without any plain, speedy, and adequate remedy in the ordinary course of law, and that the plaintiff is individually interested therein, and that plaintiff sustains, and may sustain, damages by the non-performance of such duty, and that performance thereof has been demanded and refused, and asks that this court issue a writ of mandamus directed to the said W. "W. Birdsall,. treasurer, directing him to pay over to the said McGregor and Sioux City Railway Company said tax, so collected as railroad tax aforesaid, from the “taxpayers in the township of New Hampton aforesaid.” To this petition a demurrer was interposed, alleging the following grounds:
    1. The petition does not show a cause of action, it failing to state sufficient facts to entitle plaintiff to the relief demanded.
    2. The petition shows the plaintiff’s claim to be founded upon an unconstitutional law.
    3. The petition shows that there is a remedy at law, and plaintiff not entitled to the writ. Demurrer sustained. Plaintiff appeals. Error assigned, the sustaining of the demurrer.
    
      
      J. II. Powers for the appellant.
    
      M. O. Ayers, A. G. Case and L. L. Ainsworth for the appellee.
   Day, J.

I. The first ground of demurrer is too general and will not be considered. Rev. § 2877; Davenport G. L. & C. Co. v. The City of Davenport., 15 Iowa, 6.

II. In the case of Stewart v. The Board of Supervisors of Polk County, ante, 9, this court held the act of 1870, authorizing townships and incorporated towns to aid in the construction of railroads, to be constitutional. That decision was not based upon the existence of any material distinction between the act of 1870 and that of 1868. Adopting the reasoning and following the conclusion in that case, a majority of the court hold that the second ground of the demurrer should have been overruled.

III. The remaining point presented by the demurrer is, in the argument, placed solely upon the ground that an unconstitutional law enjoins upon an officer no public duty. If the law is constitutional, this objection is answered. That mandamus affords an appropriate remedy for the wrong complained of, see Bryan v. Cattell, 15 Iowa, 538.

The judgment of the district court is reversed, and the cause remanded.

Reversed.

Beck, J., dissents.  