Board of Commissioners v. Hinchman

31 Kan. 729 | Kan. | 1884

The opinion of the court was delivered by

Horton, C. J.:

Various objections are presented' to the bonds set forth in the petition. Some of these objections are to the effect that they are absolutely void because the township had no authority to issue them, and that their infirmities appear upon their face; others, that if not void, they are at least voidable. An examination of the record convinces us, however, that the plaintiff below is in no condition to claim equitable relief. It appears, among other things, from the findings of the trial court, that the bonds of the township, to the amount of $15,000, were issued March 1st, 1873; that they were sold in the city of New York for ninety cents on the dollar; that the proceeds thereof were used exclusively in the construction of a court house for Morris, county on the court-house site in the city of Council Grove, in accordance with the petition presented to the trustee of the township for the submission of the proposition to vote said bonds; that on September 25, 1876, an action was brought in the United States circuit court for the district of Kansas by the Bank of Lima against Council Grove township, upon the coupons of eleven of the fifteen bonds; that on October 18, 1876, a demurrer was interposed by the township to the petition; that this demurrer was overruled by the court on June 12, 1877, and the township failing to answer, judgment was rendered against it upon the coupons; that no appeal was taken therefrom; that the judgment was afterward paid; that the plaintiff moved into Morris county in 1873; that he voted at the general election in 1873 in the township; that he regularly paid taxes every year subsequent to 1873 on his real'estate described in the petition, including the taxes levied to meet the interest on these bonds, until he brought this action to enjoin the collection of the tax of 1881.

After the judgment of the Bank of Lima was rendered against the township, the plaintiff paid his portion of the taxes to liquidate the same, and he continued to pay his taxes for interest and to provide a sinking fund upon all the bonds, up to 1881. It is a well-established rule in equity that if a party is guilty of laches or unreasonable delay in the enforcement of his rights, he thereby forfeits his claim to equitable relief. Under this rule it was decided that an injunction will not be granted to.restrain the payment of money illegally voted by a town, if the petitioners have been guilty of gross laches and knowingly have permitted others to incur liability in good faith, relying upon such appropriation for reimbursement. (Tash v. Adams, 64 Mass. 252.)

Again, where aid is given to railroads under enabling acts, and bonds are issued in exchange for stock, or the bonds are sold and stock purchased which is retained by the municipality; or even where there is a donation of the bonds, and interest is paid for a number of years, the municipalities are concluded as to any irregularities in the issue. (Johnson v. Stark County, 24 Ill. 690; Keithsburg v. Frick, 34 id. 421; Commonwealth v. Pittsburgh, 43 Pa. St. 391; Steines v. Franklin County, 48 Mo. 167; Bradley v. Franklin County, 65 id. 638; Burr v. City of Carbondale, 76 Ill. 455.)

Further, it is held that if a judgment is obtained against a county or its legal representatives in a matter of general interest, as the assessment or collection of a tax, it is binding upon all the citizens individually as well as upon the county or its officers named as parties on the record. (Clark v. Wolf, 29 Iowa, 197.) If this is so, then by the action of the federal court against Council Grove township, all the citizens of that township are concluded. This includes all citizens within the township and those upon the territory of which the township was composed at the voting and issuance of the bonds. (Ch. 142, Laws of 1873.) Therefore the plaintiff below is estopped from now contesting the validity of the bonds. Clearly, the township cannot relitigate the validity of the coupons or bonds set forth in the action lately pending in the federal court. If the prior judgment renders the township liable'for the bonds, that judgment can have no validity or force unless the citizens are bound thereby, because the township has no power to provide moneys for the payment of the bonds outside of the collection of taxes upon the property of the township embraced therein at the time the bonds were issued. If any tax-payer may restrain the collection of the taxes levied to pay the bonds, by an action against the township or its officers, the township is without power to pay the interest on the bonds, or provide a sinking fund to pay the bonds. .

Counsel insist that even if the bonds are valid as against Council Grove township and all of its citizens, that the detached territory — Valley township — is not liable; that ch. 142, Laws of 1873, applies only to bonds “legally authorized and issued.” Plaintiff moved into Council Grove township in November, 1873, and that township must be treated as the plaintiff’s agent or representative so far as these bonds are concerned. Valley township, as an organization, had never anything to do with the issuance of the bonds. If Council Grove township cannot question the validity of the bonds, the plaintiff cannot question their validity. Therefore neither Council Grove township nor the plaintiff can be heard at this time to say the bonds were not “legally authorized and issued.” As to Council Grove township and the plaintiff the bonds have been “legally authorized and issued,” and their validity cannot now be contested.

It is also insisted that a portion of Valley township — a. two-mile strip — was never in Council Grove township, and that so much of the real estate of plaintiff below as is situated in sections 11 and 35, lies in the two-mile strip, and therefore that this part of the real estate described in the petition was not in Council Grove township at the time the bonds were voted or issued. (Chandler v. Reynolds, 19 Kas. 249.) From 1864 to the time that Valley township was organize"!!, in 1874, the two-mile strip was not only a part of Morris county, but was everywhere recognized and acknowledged as a part of Council Grove township. It was not only so recognized and acknowledged by its own residents, but it was so recognized and acknowledged by the citizens and officers of Council Grove township, and also by the officials of Morris county, including the board of commissioners of that county. This was never questioned until this action was commenced. Therefore, although the county commissioners of Morris county never actually made a formal order changing the east boundary line of Council Grove township, so as to embrace said two-mile strip, it was to all intents and purposes a part of.the township at the time the bonds were voted and issued. (School District v. The State, 29 Kas. 57.)

The judgment of the district court must be reversed, and the case remanded with direction to the district court to enter judgment upon the findings of fact dissolving the temporary injunction heretofore granted in the case.

All the Justices concurring.