5 Kan. App. 103 | Kan. Ct. App. | 1897
While there are nine assignments of error made by the plaintiff’s counsel in their brief, there are in fact but two questions involved in the decision of the case. The first is, whether lands owned by a railroad company within the corporate limits of a city of the second class are liable to assessments for local improvements,— in this case, for the construction of a sewer. The second question is, whether, in case such lands are subject to be assessed for local improvements, the statutes authorize a warrant to be issued by the treasurer of the county to enforce the collection of the assessment.
There is no difficulty in answering the first question. The contention of counsel for the exemption of railroad lands from liability to these assessments, is based, chiefly, upon the provision of article 7, chapter.107, of the General Statutes of 1889, which provides the manner of assessing railway property for taxation. This applies to the general revenue, which only can properly be denominated taxation. Special assessments are not taxes ; and this class of burdens which are compensated by benefits, is governed by entirely different law. It has been expressly — almost universally — held that exemptions from taxation do not include exemption from assessments for local benefits. Cooley on Taxation, (1st ed.,) pp. 146, 456 ; Paine v. Spratly, 5 Kan. 525 ; Reeves v. The Treasurer of Wood County, 8 Ohio St. 333.
Judge Dillon, in his work on Municipal Corporations, (3d ed., note 2 to section 737,) says :
“Subject to constitutional restrictions, in the particular state, it is within the power of the legislature of a state to ascertain the public burdens to be borne and the persons or classes of persons who ought to bear them, and its determination is not judicially reviewable.” Scoville v. Cleveland, City of, 1 Ohio St. 127; Warren v. Henly, 31 Iowa, 31.
And further, in section 740 :
‘ ‘ In the absence of special constitutional restrictions, the legislature may confer the taxing poiver upon municipalities in such measure as it deems expedient; in other words, with such limitation as it sees fit, as to the rate of taxation, the purposes for which it is*111 authorized, and the objects (that is, the property) which shall be subjected to taxation.”
The legislature cannot confer any greater power than it possesses, and it must observe the restrictions and limitations of the organic law ; but any tax which it might impose it can authorize a municipality to impose. Hines v. City of Leavenworth, 3 Kan. 186 ; Dillon on Municipal Corporations, vol. 2, § 761. It follows that a court declares benefits or no benefits, not upon a presumption, but upon a legislative determination,— the exercise of the legislature’s prerogative pertaining to the taxing power; because the levying of these special assessments pertains to the taxing power as much as does the collection of general revenues. So that, when we have determined that these lands, notwithstanding they are used by the Railroad in the performance of its duties as a common carrier, are subject to these special assessments, the question of benefits is a fact that the legislative authority has determined and the court cannot inquire into.
The remaining question is as to how these taxes shall be collected. As heretofore stated, the statute does not make these assessments liens upon the land or lots, nor does it authorize a sale of the lots to enforce the payment; that method cannot be resorted to. Paine v. Spratly, supra; City of Leavenworth v. Laing, 6 Kan. 274. If from the statute it is apparent that it was the intention of the Legislature that these local assessments should be made personal charges against the railway companies, owners of the land, then the statutory provision that they shall be collected as other taxes, warranted the County Treasurer in proceeding to collect them as other personal charges or taxes against railway companies are collected. It was
It is the policy of our State, as well as of the other states of the Union, to permit local self-government in municipalities ; indeed, it has been held to be a right inherent in municipalities. There can be no question but that the Legislature intended that cities of the second class should require each tract within a sewer district to bear its proportionate share of the burdens of -the construction of a sewer in that district. It ought to be apparent to every one that a railroad company is as much interested in, and derives as much benefit from, having its grounds drained, as any individual in the sewer district, owning lands; especially
It is the policy of the State to treat railroad property as an entirety, as urged by counsel for plaintiff in error. This rule is not violated by authorizing the city to make the assessment, and it is upheld by directing the county treasurer to make the collection of the city taxes the same as he makes the collection of the State taxes.
Under specific authority of the statute, the county treasurer issues a warrant for the collection of all railroad taxes of the State, county, school district, township, and road district, not paid voluntarily, and when the Legislature says that the county treasurer shall collect the city taxes in the same way, it must mean that he shall carry out the same policy with respect to all property which the State provides for in relation to its own taxes. It follows necessarily that the Treasurer was authorized to issue a warrant in the case of property assessed for improvements, which belonged to the Railroad Company and which was a part of its railway system.
Hence, we hold, first, that the Railroad’s property