Atchison, Topeka & Santa Fé Railroad v. Wilhelm

33 Kan. 206 | Kan. | 1885

The opinion of the court was delivered by

HoutoN, C. J.:

It is urged by the defendants that there is .a defect of parties defendant in the petition as to the school-district taxes, and therefore that this court cannot pass upon the legality of those taxes. This view is correct. The parties ■defendant are under no legal obligation to defend the school districts. As the districts are directly interested in the collection of those taxes, the officers thereof should have been made parties defendant. (The State v. Anderson, 5 Kas. 90; Carpenter v. Hindman, 32 id. 601; Gilmore v. Fox, 10 id. 509-512; Hays v. Hill, 17 id. 360.)

It appears from the petition that the assessed valuation of .all the taxable property in the county of Jefferson for the year 1882, was $3,217,000.31. The levy for the “poor-fund” of two mills, was in addition to the ten mills levied for current •expenses. As the taxable property of Jefferson county, for 1882, was less than $5,000,000, the question is presented, whether the tax for the “poor-fund” was one of the current ■expenses of the county, and should therefore have been included within the ten-mills limitation. Sec. 35, ch. 79, Comp. Laws of 1879, gives the board of county commissioners authority to annually levy a tax for the support of the poor. We have biblical authority that “the poor always ye have with you,” and experience shows that the expense for the support of the poor in the counties of the state is an expense to be incurred every year — in other words, an expense of the ■current year. Therefore, in our opinion, the “poor-fund” is simply one of the items which the county board takes into consideration in levying a tax for county expenses, or for current expenses. (Comm’rs of Osborne Co. v. Blake, 25 Kas. 356.) The statute permitting the county commissioners to levy and assess a tax for the support. of the poor of their respective counties, was adopted in 1862. At that time, there was no limitation to the power of taxing for such purposes. In 1868 the legislature passed an act which limited the levy for the-current expenses of any one year to one per cent, on the dollar, where the taxable property of a county is less than $5,000,-000. (Gen. Stat. of 1868, ch. 25, § 181; Comp. Laws of 1879, ch. 25, § 220; Bartlett v. A. T. & S. F. Rld. Co., 32 Kas. 134.) The levy of two mills upon all the taxable property of Jefferson county for the “poor-fund,” is therefore illegal, because in excess of the levy of ten mills for county or current expenses, and not having been authorized by a direct vote of the people therefor. (Bartlett v. Railroad Company, supra.)

It is said, however, that as the taxes levied by virtue of said § 35 cannot be applied to any other object than that mentioned therein, that this tends to show that the legislature did not place any limitation upon the power of taxing for the “poor-fund.” This does not necessarily follow. The statute provides that when a judgment shall be rendered against the board of county commissioners of any county, or against any county officer, where the same shall be paid by the county, it shall be levied and collected by a tax, and when so collected, shall be paid by the county treasurer to the person to Avhom the same shall be adjudged. Taxes levied under this authority are held to be county expenses, or current expenses. (Comm’rs of Osborne Co. v. Blake, supra.) The whole course of the later legislation in the state has been to restrict and fix the limits of the taxing power, and since the adoption of said §181, of ch. 25, Gen. Stat. of 1868, we do not think that the legislature intended that the power of the board of commissioners to levy a tax for the support of the poor should be unlimited.

The demurrer to the complaints regarding the alleged excessive levy by the school district will be sustained, but the demurrer to the levy of two mills for the “poor-fund” will be overruled.

The case will be remanded, with direction to the court below to dispose of the same in accordance with the views herein expressed.

All the Justices concurring.