I concur in the foregoing opinion, but am of opinion that judgment was rightfully rendered for the defendant for the further reason that the whole proceedings, contemplating a donation by the county to aid in the construction of the railroad, were without competent authority, and void. In my opinion, the 6th section of the 10th article of the constitution, limits the aid to be furnished by a county to any incorporated company to the taking of stock therein. My views on this point are more fully stated in the case of The Lafayette, Muncie, and Bloomington R. R. Co. v. Geiger, 34 Ind. 185.
Downey, J.Being of the opinion that the proceedings which resulted in the levy of the tax in question were fatally defective, I concur in the conclusion that the case was rightly decided for the appellee by the common pleas, for this reason, in addition to the reason given in the main opinion: The petition prayed the board of commissioners to make an appropriation of a designated amount by way of donation. The board ordered an election to determine whether there should be an appropriation of the amount as prayed for in the petition, or not. The notice given informed -the voters that they were to vote on the question whether the amount should be donated or not. This, I think, was a fatal departure from the requirements of the statute. The petition must ask for an appropriation simply. Sec. r. The order of the board must be .for the holding of an election *528upon the subject of appropriating money by such county. Sec. 2. The notice must conform to the petition and the order of the board. Sec. 3. When the vote is taken, it must be “ for the railroad appropriation,” or " against the railroad appropriation.” Sec. 6. After the money has been collected, the board of commissioners decide whether the money shall be applied to the taking of stock, or by way of donation. Sec. 14. When, as in this case, the question of donation alone is submitted to vote, it is without authority of law; it would take away from the commissioners the power of choice which the law vests in them, and which they are to exercise after the money shall have been collected,'and is a clear departure from the statute. It would follow, if I am right in this conclusion, that the question of subscribing for stock could no more be submitted to the voters than that of donating the money. This view of the question was indicated in the opinion in the case of The Lafayette, etc., R. R. Co. v. Geiger, supra, as entertained by me. It seemed to me proper, if not necessary, that I should, in this case, state my convictions at a little greater length, and in my own language.
H. Crawford, D. T. Wright, f. Gavin, J. D. Miller, J. S. Scobey, and O. B. Scobey, for appellant. A. A. Bonner, C. Ewing, and J. K. Ewing, for appellee.