I dissent on constitutional grounds, as stated in the case of Petty v. Myers, 49 Ind. 1.
Scott, J.I am unable to agree with the majority of the court in the conclusion reached in this case.
I regard the power conferred on boards of county commissioners by the act of May 12th, 1869, 1 R. S. 1876, p. 736, as one, if rightfully conferred, to be used in strict conformity to the statute. I am of opinion that such boards have no jurisdiction unless acquired in strict compliance with the statute. Such boards can only acquire jurisdiction in such a case by a petition which is in conformity with the statute, and, if the petition be not sufficient to confer jurisdiction, vevery act- done subsequently is void.
The 1st section of the act is as follows :
“ Seo. 1. That whenever a petition shall be presented to the board of commissioners of any county in this State, at any regular or special session thereof, signed by twenty-five freeholders of any township of such county, asking such township to make an appropriation of money to aid a railroad company, named in such petition, and .then duly organized under the laws of this State, in *528constructing a railroad in or through such township, by taking stock in or donating money to such company to an amount specified in such petition, not exceeding, however, two per centum upon the amount of the taxable property of such township on the tax duplicate of the county delivered to the treasurer of the county for the preceding year, it shall be the duty of such board of commissioners, after being satisfied that such petition has been properly signed by the requisite number of freeholders of such township as' aforesaid, to cause the same to be entered at full •length upon their records.”
The petition is as follows :
“ State of Indiana, Hamilton County, set.:
“To the Hon. Board of Commissioners in and for said county:
“ We, the undersigned citizens, freeholders of Nobles-ville township, would respectfully petition your honorable board, and represent that we desire to raise by taxation and appropriate the sum of twenty-eight thousand five hundred dollars, or a sum equal to two per centum of all the taxable property in said township, to the Anderson, Lebanon and St. Louis Railroad Company, by taking stock in that company to that amount, the said railroad company having been legally incorporated under the laws of this State, and whose line of road passes through our township ; and we ask your honors to take such steps as are contemplated to be taken by boards of commissioners under the statute, in this behalf made and provided, approved May 12th, 1869, (see Acts 1869, p. 92,) and your petitioners will ever pray,” etc. Here follow the names of subscribers, eight hundred or more.
The law requires that the petition ask that the township make an appropriation to aid a railroad company in constructing a railroad through such township.
The petition does not ask that such township make an *529appropriation of money to aid a railroad company in constructing a railroad through such township, but asks to appropriate money to take stock in a l’ailroad company, whether as an investment or for some other purpose is not stated. I am of opinion that this uncertainty is substantial and fatal.
The law requires that the petition should state a specified amount, not exceeding two per centum upon the amount of taxable property of the township on the tax duplicate for the preceding year.
“No year is mentioned in the petition and it might mean the current year or the year preceding, upon which the tax had recently been paid. This uncertainty is fatal.” The Detroit, etc., Railroad Co. v. Bearss, 39 Ind. 598.
It can not be said, either from the words of the petition or from any fair inference, that the Anderson, Lebanon and St. Louis Railroad Company had not completed its-line of railroad. It is not stated in the petition that the railroad was in process of construction or was completed in whole or in part. This uncertainty is fatal.
The learned Chief Justice, in pronouncing the opinion of the majority of the court, uses the following language:
“In the case at bar, the appellants further object to the sufficiency of said petition, because they say that it did not. ask the county board to appropriate any sum of money to'i aid in the construction of said railroad through said town! ship. The petition is loosely worded, and was not drawn with legal accuracy and precision, but it seems to us that the object and purpose of the petition could not be misunderstood by any one, and certainly were not misunderstood by the county board, as is clearly shown by the record of ¡ their proceedings on said petition.” ■:
I can not concur in this view of the question. The' question is not whether the board of commissioners under-: stood or misunderstood the object and purpose of the pe*530tition, but was the petition, on its face, sufficient to give the board of commissioners j urisdiction ? Where a statute, in effect, strips an individual of his property, or which in any way affects the same, its requirements must be strictly complied with. The requirements of the statute are the very conditions upon which the owner is divested of his title and property, and it does not lie with the court to consider whether the statute has been nearly complied with ; but the question is, have the provisions of the statute been literally pursued and strictly complied with ?
I am of opinion that the petition in the case at bar was utterly and wholly defective, and that all the subsequent proceedings of the board of commissioners thereunder were void.
. It appears by the complaint and exhibits, that one A. P. Hess was formerly the treasurer of Hamilton county, Indiana ; that said Hess advanced money to the finance committee of the Anderson, Lebanon and St. Louis Railroad Company, with an understanding and agreement that he should he reimbursed out of the railroad tax when the same should be due the company ; that said Hess was, at the expiration of his term of office, a defaulter; that his sureties were compelled to pay his defalcation ; that he was adjudged a bankrupt; that an assignee was appointed to take charge of his estate ; that the Distiiet Court of the Hnited States for the district of Indiana ordei’ed the assignee to collect the amount advanced by Hess to the finance committee of said railroad company, from the treasurer of Hamilton county, when the same should be collected, and that said assignee should hold such amount so collected for the benefit of said Hess’ estate and bondsmen. On the 11th day of December, 1879, the Board of Commissioners of Hamilton county, on the petition of the bondsmen of said Hess, made the following order. After reciting the petition of the bondsmen and the decree of the District Court in full, the order concludes :
*531“ By the terms of which decree Peter C. Sawyer, as assignee of said A. P. Hess, is ordered and directed to collect of the treasurer of Hamilton county, Indiana, for the benefit of said A. P. Hess’ estate and his bondsmen, said sum of $7,450, to be paid by said -treasurer out of said raidroad funds as fast as the same may be collected by said treasurer.
“And whereas it appears that said railroad company, nor its receiver, were made parties to the proceedings had before said board of commissioners on the 11th day of June, 1879, in which said treasurer was ordered to collect said railroad funds for the benefit of said Hess and his bondsmen, neither was said railroad company or its receiver a party to the proceedings and decree rendered on the 5th day of November, 1879, before the Hon. Walter Q. Gresham, Judge of the District Court of the United States for the District of Indiana: It is therefore ordered, adjudged and decreed by the board that the Treasurer of Hamilton County, Indiana, be required, on and after the 1st day of February, 1880, to comply with the order from the District Court of the United States, herein set out, unless he is on or before said date duly restrained and enjoined from complying therewith and the auditor of said county is hereby ordered and directed to make out a certified copy of this order, and cause the same to be delivered to the president and receiver of said railroad company as soon as the same can be done.”
I am of the opinion that this order is void, for the reason that it is a misappropriation of the money. Conceding the tax to have been legally assessed, the railroad company is not entitled to receive it from the county until its road shall have been completed, and Hess and his assiguee and bondsmen are not entitled to receive the money .until such time as the railroad company shall show itself entitled to receive the same from the county. Under the order of *532the board of commissioners, the money is'to be paid to the assignee of.Hess,.the former county treasurer, for the benefit of his estate and bondsmen, immediately on its collection, such order making the collection of the tax and the payment of the money over to the assignee of Hess contemporaneous acts. I am of the opinion that the board and the treasurer ought to be enjoined from paying the money to said assignee until it be shown that the railroad company is legally entitled 1o receive it.
■ On this-latter branch of the case, the learned Chief Justice, in pronouncing the opinion of the majority of the court, uses the following language :
; “ It might well be, for aught that the appellants have ¡alleged in their complaint, that the whole or a large portion of the amount of the Uoblesville township appropriation had.been properly paid to the railroad compa^r out of other moneys in the county treasury, in advance of the collection of said special tax; and in that event, under the provisions of section 15 of the original act of May 12th, 1869, the county hoard would be folly, authorized, we think, to order the collection of said special tax, for the purpose of refunding to the county the amount of said advanced payment, ‘when such special tax shall have been collected.’. 1 R. S. 1876, p. 739.”
- I can not agree to this part of the opinion of the majority, for the reason that it appears from'the order, above quoted from the record in this case, that the object in collecting the special-tax is not for the purpose of refunding to the county the amount of any advanced payment made under section 15 of the original act of May 12th, 1869. If the county made an advanced payment under section 15 of the original act of May 12th, 1869, why should the mon^y be paid to Hess or his assignee or bondsmen ? But it appears from the complaint that said Hess paid said money to the finance committee of the railroad company *533on his own motion.and responsibility, and without any order or authority from the board of commissioners. ■
With great respect for the majority of the court, I am compelled to say that I regard the tax sought to be collected as illegal. The order of the board of commissioners made ou the 11th day of December, 1879, in my opinion, was wholly unauthorized by law, and I regard it as au attempt, on the part of the board, to compel the citizens and tax-payers of Roblesville township, Hamilton county, Indiana, to contribute their money, not for the purpose of aiding in the construction of a railroad, but for the purpose of reimbursing the unfortunate gentlemen who were tlie bondsmen of A. P. Hess against their liability for his defalcation, growing out of his over-confidence in the finance committee of the Anderson, Lebanon and St. Louis Railroad Company.
Diddle, J., concurs with the dissenting opinion delivered by Scott, J., and also dissents upon grounds stated in his dissenting opinion in the case of Petty v. Myers, 49 Ind. 1.