47 Kan. 722 | Kan. | 1892
Lead Opinion
The opinion of the court was delivered by
This action was brought by the railroad company against the board of county commissioners of Atchison county, the county treasurer, and T. J. Emlen, to recover $184.34, alleged to have been illegally exacted from the company as taxes. The petition alleged that the company owned and operated a line of railroad through Atchison county in the year 1886; that its property was assessed in the sum of $189,-067; and that a levy was made upon the property of 1 mill on the dollar for county bridge tax, which was in addition to the levy of 10 mills on the dollar made that year for current expenses. It was further alleged that the levy of 1 mill for county bridge purposes was not authorized by a vote of the people, or by law, and was excessive, illegal, and void. It was further stated that T. J. Emlen, the county treasurer, proceeded to collect the tax from the plaintiff on December 17, 1886, and the plaintiff, being desirous of paying the full amount of all taxes legally due from it in the said county, notified the treasurer in writing that the sum of $189.06 was illegal, and protested against the payment thereof on account of the illegality; that the plaintiff paid all legal taxes then due from it to the county, but the treasurer refused to give his receipt in full for the taxes due unless the plaintiff should also pay the illegal tax, less the amount of rebate allowed by law. It is then alleged that “the plaintiff, protesting as aforesaid, involuntarily, and under immediate and urgent necessity, paid to said treasurer the sum of $184.34 for such illegal taxes, being the amount of $189.06, less the rebate allowed by law, $4.72, and plaintiff made such payment solely to avoid the issue of legal process for its collection.” The protest referred to is as follows:
“The Atchison, Topeka & Santa Eé Eailroad Company*724 hereby notifies you that the amount legally due by said company as tax on the personal property in your county for the year 1886 does not exceed the sum of $6,428.33, which sum you have refused to receive; and that said company pays the sum of $222.48 demanded by you, protesting against the illegality thereof, and solely to avoid the issue of legal process for its collection.
“And said company further notifies you, that it will hold you and your county liable for the excess above the amount legally due; that you are not to disburse or part with such excess, and that said company will sue you and said county for its recovery.
“Dated this 17th day of December, 1886.”
The defendants jointly demurred to the plaintiff’s petition, and the demurrer was sustained, upon the ground that the petition did not state facts sufficient to constitute a cause of action. The plaintiff standing upon its petition, the action was dismissed by the court; and of these rulings the plaintiff complains.
According to the allegations of the plaintiff, the bridge tax was unauthorized and illegal. The cost of the bridge is not stated; but if it was less than $200, no appropriation could, be made by the board; if more than $2,000 was to be expended, an affirmative vote of the people was necessary, which was not given; and if less than $2,000 and more than $200 was to be expended, payment must be made out of the fund provided for the current expenses of the county. (Gen. Stat. of 1889, ¶¶ 502, 507, 513.) In this case, the county undertook to make payment under the latter provision, and out of the county fund, without a vote having been had authorizing it, and when the levy for bridge purposes was in excess of that authorized by law. Already there had been levied 10 mills on the dollar for the current expenses of the county; and this being the full limit authorized for that purpose, the added mill tax for bridge purposes must be held excessive and void. (A. T. & S. F. Rld. Co. v, Wilhelm, 33 Kas. 206.)
It is contended that the tax, although illegal, was paid voluntarily, and under such circumstances that it cannot be re
Concurrence Opinion
I concur in the foregoing opinion and judgment rendered by this court, and for my reasons I refer
For the reasons stated in the foregoing case of A. T. & S. F. Rld. Co. v. City of Atchison, just decided, I think the decision of the district court was correct and the decision rendered by this court is erroneous, and therefore I dissent in this case as well as in that.