61 P. 403 | Kan. | 1900
The opinion of the court was delivered by
This is an original action of mandamus brought by the board of commissioners of Harper county to compel the auditor and the treasurer of the state to credit the county with certain amounts of state tax charged against it in the years preceding 1898, and uncollected by it on its delinquent land tax sales. The contention of the plaintiff is that counties which have been compelled to bid in lands at tax sales and which have not been able to secure a redemption of the lands for the full amount of taxes charged, or have not been able to sell or assign their tax-sale certificates for the full amount of taxes charged, are relieved from liability to the state as to the unrealized portion of state taxes. The contention of the state is that chapter 199 of the Laws of 1885, in connection with section 182 of chapter 158, General Statutes of 1897 (Gen. Stat. 1899, § 7296), declares the liability of the county for such unpaid taxes and provides for a special levy to make up the delinquency. In Railway Co. v. Clark, 60 Kan, 831, 58 Pac. 561, we held with the state on the same question, but the correctness of our conclusion in that case is now challenged. We did not in the opinion in that case make special mention of all the statutory provisions bearing on the question, and will, therefore, in this one review them.
Chapter 196, Laws of 1872, provided that in case lands were bid in by a county at tax sales and remained unredeemed for five years, the county treas
Chapter 39, Laws of 1877, also provided for a sale of lands bid in by counties at tax sales for such sum as could be realized. The procedure under this statute was by foreclosure of the tax lien, and, like the statute of 1872, it directed the distribution of the proceeds to the various funds entitled to it.
Chapter 43, Laws of 1879, provided that if lands bid in by counties at tax sales should remain unredeemed for three years, the county commissioners might permit the owners to redeem for a less sum than the taxes, or the county clerk might assign the county’s tax-sale certificate for a less sum than the amount due thereon. It also provided in its third section for a distribution of the proceeds of redemption or assignment to the different funds.
While all the above-mentioned acts provided that the net proceeds realized from the above-mentioned sales, redemptions or assignments of certificates should be distributed among and credited to the different funds in proper proportion, none of them provided what should be done as to the unrealized portion of taxes. While it would seem that a proper account of such unrealized taxes should be kept, none of the acts in terms so provided.
Chapter 199, Laws of 1885 (Gen. Stat. 1897, ch. 158, § 221; Gen. Stat. 1899, § 7364), provided in its first section that, as to lands sold under the acts of 1872 and 1877, the county clerk should “ divide and charge the amount of such unrealized tax to the sev
None of these acts, nor any acts to which our attention has been called, provided a method of securing to the state the unrealized portion of taxes which the counties had been unable to collect on land sales, redemptions, or assignments of certificates. However, during all this time there was a provision declaring that each county should be responsible to the state for the full amount of taxes levied for state purposes, together with a provision which, seemingly, though not as we think in proper construction, would seem to neutralize or modify the one first mentioned, to the effect that the county treasurer should not be required to pay to the state treasurer more state taxes than actually collected by him. (Gen. Stat. 1868, ch. 107, §§ 132, 134; Laws of 1876, §§ 102,104.) These provisions are still on the statute-book. (Gen. Stat. 1897, ch. 158, §§181, 182; Gen. Stat. 1899, §§7295, 7296.) The meaning of these two sections is that while counties are liable to the state for the full amount of the levy for state purposes, the county treasurer shall not be required to take moneys belonging to other funds with which to pay the amount due the state.
As to delinquencies in the payment .of state taxes for the year 1884 and subsequent years, provision was made by the act of 1885, chapter 199. Section 6 declares:
“If after the settlement by the county treasurer of any county in November of each year, as provided in section ninety-nine, chapter thirty-four, of the Session Laws of eighteen hundred and seventy-six, there shall remain due from such county any portion of the state tax levied for the preceding year, the auditor of state, on the second Monday of July in each year succeeding the said November settlement, shall report to the county clerk of such county the amounts of such unpaid tax, and the county clerk shall determine the rate per cent, necessary to raise the said amount, and shall place the same on the tax-roll in addition to the regular levy for state purposes, and the same shall be collected by the county treasurer and paid into the state treasury as are other state taxes.” (Gen. Stat. 1897, ch. 158, §225; Gen. Stat. 1899, §7370.)
This section, therefore, supplements section 102 of chapter 34, Laws of 1876. (Gen. Stat. 1897, ch. 158, §182; Gen. Stat. 1899, §7296.) Together they declare the continuing liability of the counties to the state for the full amount of state taxes and provide a method by which the deficiency shall be collected and paid into the state treasury. These provisions are plain. They leave no room for construction.
The county is not entitled to a peremptory writ. The motion to quash the alternative writ is, therefore, sustained and the peremptory writ denied.