
    Counterman v. Dublin Township.
    The act of April 10, 1880, “ to authorize certain townships to build railroads, and to lease and operate the same” (77 Ohio L. 165), being unconstitutional (Wyscaver v. Atkinson, 37 Ohio St. 80), a tax-payer may maintain an action (Rev. Stats. §§ 5848-5851) to restrain the collection of a tax levied for the payment of bonds issued under the act; and the fact that the bonds were issued and the money arising from the sale thereof was expended by the trustees, with the knowledge of the plaintiff, in the construction of a railroad in the township, which enhanced the value of the property therein, including that of the plaintiff, and was otherwise useful to the citizens of the township generally, and that the plaintiff did not commence an action to restrain the issue or negotiation of the bonds or prosecution of the work, is not sufficient to estop the plaintiff from maintaining such action to restrain the enforcement of such tax.
    Error to the District Court of Mercer county.
    Jacob Counterman and Jacob S. Keetb, for themselves and others alike interested, brought suit in the court of common pleas of Mercer county, against the board of trustees of Dublin township, Mercer county, and the auditor and treasurer of the county, to enjoin the collection of a tax levied on the taxable property in that township, under the act of April 10, 1880, to authorize certain townships to build railroads, and to lease and operate the same” (77 Ohio L. 165), for the payment of bonds amounting to $20,000, issued under the act, to defray the expense of building a railroad in the township. The ground of action was that the plaintiffs were tax-payers of the township, and that the act under which the tax was levied was unconstitutional.
    The defendants answered as follows: “ The defendants aver that in pursuance of the law in the petition averred, such proceedings were duly had in compliance with the provisions of said law, that the election provided for in said law was duly had, resulting in an affirmative vote in favor of providing said line of railway; that afterward the result of said vote was duly declared; that afterward bonds were duly issued to the extent of twenty thousand dollars, and were duly and regularly sold, in pursuance of the provisions of said law, to persons who are unknown to these defendants, and the money realized therefor; that afterward, the railroad trastees, who had been duly appointed, expended said funds in the construction of the railroad as contemplated by said act; that all of said several acts and things done, were well known to the said Jacob Counterman and Jacob Keeth and all persons for whom they bring suit, as they transpired; that the building of said railroad has largely enhanced the property of the citizens of Dublin township, and is otherwise of great value to the plaintiffs and to the persons for whom they sue; that the plaintiffs, and each of them, and each and all of the persons for whom they sue, stood by, with full knowledge of each and every step being taken, which is provided to be taken by said law, and well knew that the railroad trustees were about to issue and sell the bonds of said township, and apply the money to the building of said railroad ; and that afterward they, and each of them, well knew that said work was progressing, and that they took no steps to enjoin the building of said road or the issuing of said bonds, until the said fund had been expended, and the road was fully built. Wherefore, the plaintiffs and each of the persons for whom they sue, are estopped.
    On appeal to the district court, a demurrer to the answer was overruled and the petition was dismissed, and this petition in error was filed to reverse the judgment.
    . Isaiah Pillars, for plaintiffs in error:
    There could be no estoppel. Morgan v. Spangler, Beardsley v. Foot, 14 Ohio St. 119, 416; Kellogg v. Ely, 15 Ohio St. 64; Goodwin v. Canal Co., 18 Ohio St. 169; Welker v. Potter, 18 Ohio St. 85; 20 Ohio St. 184; Wright v. Thomas, 26 Ohio St. 346; Myers v. Quinlan, 29 Ohio St. 500; State v. Mitchell, 31 Ohio St. 592, and cases cited.
    
      1. FT. Alexander, for defendants in error, commented on. the same cases.
   Oxey, C. J.

The act construed in Wyscaver v. Atkinson, 37 Ohio St. 80, and the act involved in the determination of this case (77 Ohio L. 165), are in substance the same, — the latter applying to no other than Dublin township, Mercer county, and the former to Beaver township, Noble county, alone, — and for reasons satisfactorily stated in that case, they are alike unconstitutional.

As an action of this sort, by tax-payers, is clearly authorized (Rev. Stats. §§ 5848-5851; Stephan v. Daniels, 27 Ohio St. 527), the sole question before us is, whether, in view of the matters stated in the answer, they are estopped to assert the unconstitutionality of the act under which the road was constructed.

An act of the general assembly in conflict with the constitution, is a mere nullity, and no one is estopped to assert its invalidity. Such is the general rule. And this is a matter to be determined by the court as a judicial question. South Ottawa v. Perkins, 94 U. S. 200, 267; The State v. Railway Co., 31 Ark. 701; The State v. Railway Co., 74 Mo. 163; Post v. Supervisors, 105 U. S. 667. But parties may, under special circumstances, be precluded from availing themselves of such infirmity. Where one actively intervenes to secure the passage of an act, or the expenditure of money in pursuance of it, or where one, with knowledge that improvements are in progress on his lands, under authority of a legislative enactment, permits the work to proceed without objection, there is much reason for saying he should not be permitted to plead that such statute is unconstitutional. Ferguson v. Landram, 1 Bush, 548; s. c., 5 Id. 230; approved, The State v. Mitchell, 31 Ohio St. 592, 610; and see cases cited by counsel, and Daniels v. Tearney, 102 U. S. 415, 421. But the same reason does not apply where there is only inaction, and “ the duty to speak ought to be very imperative to make mere silence operate as an estoppel.” Cooley on Taxation, 573. If we should hold the plaintiffs to be estopped on the facts here set forth, we would, in effect, require every property owner to determine, at his peril, in advance of the expenditure of any money under the authority of the act, whether such act was constitutional, and incur the necessary expense of obtaining a judicial determination of the question. And he would thus become not only the guardian of his own property rights in that regard, but charged with the duty of controlling the conduct of the officers provided by law for the township.

"We are clear, that the doctrine of estoppel can never be rightly applied to the facts here presented. But the holders of the bonds are not before us. Moreover, the question as to the liability of the owners of lots abutting on a street improved under an unconstitutional act, to pay an assessment for such improvement, is presented in other cases which have been submitted but not decided. For these reasons this opinion is confined strictly to the question of estoppel on the facts set forth in the statement of the case.

Judgment reversed.  