Year: 1868

first taken by selling it away from the
owner, and then stock certificate is ten-
dered him. can see no reason why pri-
yate property can be sold TO raise funds
TO put gravel upon turnpike road, any
more than part Of his farm can be taken
for road bed without compensation, first
assessed and rendered. While the right
Of the State to confer upon corporation
the power to take private property for the
purpose of roadway or the construction
Of the road, is not to be controverted, it
will hardly be contended that il can be
taken without compensation being first
made or rendered, and no good reason can
be given why the same rule should not
apply if funds are to be raised out of pri-
vate property to build tho road after the
right of way is obtained. This law makes
ample provision for taking private prop
erty. but makes none whatever for COM
pensating tile owner as required by the
constitution and therefore ought TO be
held to be void.


But all this is in conflict with the opin-
ion Of the Supreme Court in the case of
Goodrich vs.. the Winchester Turnpike
Company (26 Ind, } where it is distinctly
held shat a tax may be levied for the
benefit Of Turnpike Company; and if a
tax may be levied by party of reasoning
an assessment may be made also. To this
superior AID doubtless better Judgment. |
yield, and take it for granted that my no.
tious on this subject are wholly erroneous; (;
aud therefore say, that this talo is constitu-
tionai. and can lie enforced.


Other questions are presented in these
applications for Injunction. Those re-
la,ing 70 the manner in which the assess
ments were made, amounts assessed &C.,
cannot. in my judgment be OF avail in
this form of action They must be taken
advantage Of by appeal aud trial in court
as provided by the Statute. There is one
however which it seems to me is worthy
Of much consideration, to wit; the defect
in the description Of the land


The Real Estate upon which the assess.
ment is made is not described ut all. To
make the tax colcctable, the assessment
must be complete in itself, else sale Of
land to pay 1t would confer no title upon
the purchaser. The auditor, 70 place these
assessments upon bis duplicate must nee.
essarily assume that certain real estate
was intended to bo assessed. That is
leaving the matter TO his judgment and
not to that of the commissioners, who
make the assessment lie might get il
right and he might not, bu,it is not for
him to hunt over his duplicate and say
that a certain piece Of real estate was in
tended to be assessed, but il is for the
commissioners to identify it aud then he
places it upon his duplicate accordingly.


Now il is well settled rule that n
Court Of equity. will enjoin putting cloud
upon the owners title TO real property.
This tax is lien when once placed upon
the duplicate aud is a shadow upon the
title which more or less affects il. II should
not be placed thore except in strict con
iormity to law. Under the rulings of the
courts requiring the utmost strictness in
regard to sales of property for taxes. |
cannot think that upon such an assess
ment as made in these cases, valid tax
sale could be made. Ii not, tho parties
could refuse to pay aud enjoin the collec-
ton. Ii that could be done they could
enjoin, beclouding their titles with such
an apparent incumbrance. Ii is upon
this ground alone that the restraining or.
der is granted.


Upon an assessment made setting out
a proper description Of the real estate as.
sessed, should hold the owner liable to
pay. Very Truly Yours,


j. Nj. WILSON.