42 Kan. 409 | Kan. | 1889
The opinion of the court was delivered by
Two classes obligations or bonds are involved in this proceeding: one class is termed “re-funding bonds,” and the other “court-house bonds.” Both of these were issued and negotiated before the territory which is sought to be subjected to taxation for the payment of the bonds was detached from Hodgeman county and made a part of Garfield county. The re-funding bonds were issued by the board of county commissioners of Hodgeman county in pursuance of chapter 50 of the Laws of 1879, without a vote of the people, and their validity as a charge against Hodgeman county is unchallenged. The court-house bonds were executed and issued in pursuance of a vote of the electors, but their validity is questioned in this proceeding. The re-funding bonds, amounting to $32,000, were issued at different times for the purpose of canceling and satisfying county warrants that had been issued in the manner authorized by law; but neither the bonds nor the county warrants re-funded had ever been authorized or issued in pursuance of a vote of the electors, and this fact relieves the detached territory from liability for their payment. The territory detached from Hodgeman county is not subject to taxation for the payment of any indebtedness existing against that county, except as it is made so by chapter 142 of the Laws of 1873. That act expressly limits the liability to bonds that have been “legally authorized and issued by a vote of the electors of such county,” previous to the change of boundary-lines ; and hence the re-funding bonds in question are not a
It is contended by the defendant that no tax should be extended against the detached territory for the payment of the court-house bonds, for the reason that they were not legally authorized and issued by the vote which was taken. These bonds were issued in accordance with the provisions of chapter 52 of the Compiled Laws of 1885, being “An act to authorize the board of county commissioners and the authorities of cities to issue bonds for purposes of internal improvement,” which took effect March 10,1866. The claim is that this act has been repealed, at least so far as it authorizes the issuance of bonds for the purpose of erecting court houses, by the act of 1868, relating to counties and county officers, being §§ 16 to 20, inclusive, chapter 25, General Statutes. The law of 1866 is not expressly repealed by that of 1868, and repeals by implication are not favored. The earlier law appears to embrace many provisions not included in the later one, and it would hardly seem that the one was intended as a substitute for the other. We need not, and will not, now determine, however, this question, for the reason that the levies of 1887 and 1888 certified by the authorities of Hodgeman county are illegal and cannot be extended against the detached territory for the payment of the bonds, even if they are valid. Two levies were made and certified to the county clerk of Garfield county — that of 1887 was a levy of three mills on the dollar, in gross, to provide a sinking fund to pay the interest on the re-funding and court-house bonds, and to provide a sinking fund for the payment of the bonds at their maturity. For 1888, a levy of two mills on the dollar was made and certified to the county clerk of Garfield county for the payment of the interest and to provide a sinking fund for the final payment of $42,000 indebtedness, which includes both the re-funding and courthouse bonds. Each levy was made in part for the payment of indebtedness for which the detached territory was in no way liable, and the authorities of Garfield county were not
The peremptory writ must be denied.
