
    Bonnifield, trustee, v. Bidwell.
    Constitutional law; act to aid in the construction of railoadb. The holding in Stewart v. The Board of Supervisors of Polh Oounty, 30 Iowa, 9, that the act of 1870, authorizing taxation to aid the construction of railroads, is constitutional, followed in the present case in respect to the act of 1868. Beck, J., dissenting.
    
      
      Appeal from Wapello Circuit Court.
    
    Thursday, July 27.
    The plaintiff sued on a promissory note. The defendant answered, admitting the execution of the note, and pleaded a set-off for taxes paid to the treasurer of Wapello county for the use of plaintiff, under the township railroad tax law of 1868, alleging that he paid said taxes under protest, and that the act aforesaid was unconstitutional and void. A tender of the balance due to the plaintiff was pleaded, and the money brought into court. The causé was tried to a jury, who, under the instructions of the court, allowed the set-off, and gave a verdict for plaintiff for the sum mentioned. From the judgment on this verdict plaintiff appeals.
    
      I. H. Mast and J. T. Haekworth for the appellants.
    
      W. J. Mitchell for the appellee.
   Miller, J.

The plaintiff was the trustee of the St.: Louis & Cedar Rapids Railroad Company, in whose behalf the tax referred to had been voted and levied, under the law of 1868. The court below instructed the jury, in substance, that the tax levied under that act was uncom stitutional, and that, if the defendant had paid the same under protest, he would be entitled to recover the same back again. This view of the law was doubtless based upon the decision of this court in Hanson v. Vernon, 27 Iowa, 28, which held the act of 1868 unconstitutional.

Whether the ruling of the court below was correct upon that hypothesis we need not inquire, since the decision in Hanson v. Vernon was overruled in Stewart v. The Board of Supervisors, 30 Iowa, 9. The latter decision was made upon the act of 1870, bnt “ was' not based upon tbe existence of any material distinction” between tbe two acts. And adopting tbe reasoning and following tbe conclusions in Stewart v. The Board of Supervisors, etc., supra, tbis court beld in tbe case of The McGregor & Sioux City Railway Co. v. Birdsall, 30 Iowa, 255, that tbe act of 1868 was constitutional, and that it was tbe duty of a county treasurer to pay over to tbe proper officer of tbe railroad company to wbicb a tax bad been voted, tbe money collected by bim tbereon; and in case of bis refusal, be will be compelled to do so by mandamus.

In view of these decisions, tbe court below erred in ruling that tbe taxes paid by tbe defendant to tbe county treasurer were illegal and could be recovered back, if paid under protest. Tbe judgment is therefore

Eeversed.

Beck, J., dissenting.  