dissenting. — I am unable to concur in the foregoing opinion of the majority. In my opinion the Muscatine Western Railroad Company, to whom the tax was voted to aid in the construction of its railroad failed to fulfill the conditions upon which such tax was to become payable to it, and therefore the defendants are not required to make the certificate demanded.
The plaintiff was incorporated under the laws of this state for the purpose of consi/ruoting a railroad from Muscatine to the west line of the state, with its principal place of business in the city of Muscatine. The organization of the company took place May 23d, 1870. In the petition presented to the township trustees, asking a submission of the question to a vote of the electors, whether a tax should be levied in aid of the construction of the plaintiff’s proposed road, it is recited that the road is to “ start from the city of Muscatine, county of Muscatine, State of Iowa, and run in a westerly direction through portions of the counties of Muscatine, Johnson, Washington, Keokuk, Mahaska, and Marion, to some point on the Missouri river in the State of Iowa,” and it was therein further “ provided that the aid voted for is on the express condition that no part of the money shall be drawn from the treasury by said railroad company, until said railroad shall be built and in operation, from the city of Muscatine to the crossing of the Burlington, Oedar Rapids & Minnesota R. R., at Nichols Station in Pike township; and also on the further express condition that said railroad shall be thus built, and in operation by July 1st, 1872.”
It was also expressly agreed between the plaintiff and the trustees of Pike township that the tax about to be voted should be voted and payable “ upon the terms and special conditions that the proceeds of said tax, if voted, shall not be paid over to said railroad company until their railroad shall home been built and in operation from the city of Muscatine, Iowa, to the crossing of the Burlington, Oedar Rapids & Minnesota R. R., at Nichols Station; and further that said railroad shall be so built on or before the first day of July, 1872.” On the 27th day of May, and before the grading of the road from Muscatine to Nichols *50Station was coinpleted by tlie plaintiff, it made an absolute and unconditional sale and conveyance to the Burlington, Cedar Rapids & Minnesota Railroad Co. of “ all it rights of way and other lands of said company, grading, culverts, bridges, ties, and all other property, rights and franchises of said company, except the tax voted and subscriptions made ” in Pike and other townships named. On the same day the Burlington, Cedar Rapids & Minnesota Railroad Company entered into a written contract with the Iowa Railway Construction Compauy, by which the latter agreed to complete the grading of the road from Muscatine to the Iowa river ready for the iron by the first day of July, 1872.
It will thus be seen that before the plaintiff had performed the conditions upon which it was to become entitled to the tax voted, it sold and conveyed all of its property in the l’oad it had undertaken to build, and all of its rights and franchises connected therewith, thereby disabling itself from performing the conditions of its contract with the defendant. In my opinion this sale operated as a dissolution of the 'corporation to which the aid. had been voted. It was no longer a corporation for any purpose except to wind up its affairs, that is, to pay its debts and collect moneys due it. This tax had not become due and payable to the corporation when all of its property and franchises were by it transferred to another corporation, leaving it utterly powerless to go on and complete and operate its railroad to ' Nichols Station by the first day of July, 1872, which was the condition upon which it was to become entitled to the aid voted by the people of Pike township. Nor did the plaintiff pretend to thus complete its road to Nichols Station. On the contrary the grading was finished by the construction company under a contract with the Burlington, Cedar Rapids & Minnesota Railroad Company, and the road ironed and operated by the last named company, then the owner thereof.
From the time the plaintiff sold and conveyed its property and franchises to the Burlington, Cedar Rapids & Minnesota Railroad Company, the plaintiff as a corporation was dissolved and the road it had proposed to build and had commenced, *51was no longer the Muscatine Western Railroad, but a branch of tbe Burlington, Cedar Rapids & Minnesota Railroad. The railroad which the people of Pike township had voted to aid was entirely abandoned. Instead of a railroad from the city of Muscatine westerly across the State it was converted into a plug or feeder to another and rival railroad, and this before any of tbe tax voted had become payable by the terms of the agreement entered into between the plaintiff and tlie trustees of tbe township, thus abandoning tbe enterprise to aid wbicli the tax was voted.
The trustees could not truthfully and lawfully certify that the plaintiff had complied with the conditions on which the tax was voted and should not he required to do so by mandamus.
I have thus briefly stated the principal grounds of my dissent from the majority opinion which in my judgment compels the people of Pike township to pay a tax in aid of a railroad which they never agreed to or proposed to assist.