98 P.2d 120 | Kan. | 1940
Lead Opinion
The opinion of the court was delivered by
This was an action on the official bond of a county treasurer. Judgment was for the defendants sustaining a demurrer to the petition of plaintiff:
The petition alleged, first, the official capacity of the parties, and that defendant Jones entered upon the duties of the office of county treasurer on the second Tuesday in October, 1933, and served until the expiration of his term on the second Tuesday in October, 1935, and that on October 7, 1933, defendants gave an official bond, of which the condition was as follows:
“Now, therefore, the condition of this obligation is such that if the said Oliver T. Jones, and his deputy, and all persons employed in his office, shall faithfully and promptly perform the duties of said office, and if said Oliver T. Jones and his deputies shall pay according to law, all moneys which shall come to his hands as treasurer, and will render a just and true account thereof whenever required by said board of commissioners or by any provision of law and shall deliver over to his successors in office or to any other person authorized by law to receive the same, all moneys, books, papers and other things appertaining thereto or belonging to said office, then the above obligation to be void; otherwise to be in full force and effect.”
The petition then set out the duties of defendant Jones with reference to receiving and collecting taxes, and that plaintiff board of education was a taxing unit of Crawford county. The petition then alleged that defendant Jones, as county treasurer, on October 2, 1935, made distribution and allocation of taxes collected for the tax year 1934 to the various funds, accounts and distributees entitled thereto, including the general high-school fund (otherwise known as the community high-school tuition fund). The petition then alleged that in making this distribution to the general high-school fund defendant Jones neglected to credit, and allocate to that fund the amount of tax due and .owing from the county treasurer to it, in that he in making the allocation credited and allocated the sum of $48,368.05, when there was due it $56,994.24; that by reason of these facts plaintiff was deprived of the just and proper amount of its proportionate share of the fund, in that there was owing to plaintiff as its share $8,960, whereas, due to the neglect of defendant Jones, there was paid to plaintiff only $7,645.88, and plaintiff was deprived of the balance, being $1,314.12; that all these acts of defendant J ones were in violation of law and he did not faithfully and promptly
It will be noted that the petition spoke of the duty of Jones to distribute certain of the taxes collected to the general high-school fund, and that in making this distribution he did not distribute the correct amount to this fund so that plaintiff failed to receive the amount to which it was entitled for the year in question.
Plaintiff points out first the language of the bond, which is in the words of G. S. 1935, 19-502, also G. S. 1935, 19-506, 19-507 and 19-508. These statutes provide what the duties of the county treasurer shall be with reference to paying out money, keeping books, making settlements with municipal organizations and making quarterly statements. It is the contention of plaintiff that the petition stated facts from which it must be concluded that Jones violated these sections, thereby causing a loss to plaintiff, and hence is liable on his bond.
The defendants make an argument that the petition shows on its face that the action was barred by the statute of limitations, and that in any event the action is not one that the plaintiff should be allowed to maintain.
We expressly refrain from passing any opinion as to the latter argument that the action is not one which the plaintiff should be permitted to maintain, but will consider the question of the statute of limitations.
This action was filed October 1, 1938. The tax levy in question was for 1934.
We must first notice the statute under which provision is made for the general high-school fund. These sections are, first, G. S.
The petition does not allege that the plaintiff did any of the acts or made any of the reports that would entitle it to be paid tuition. On a general demurrer, however, we should accept the general allegations of the petition as complying with this necessity.
The statute is plain, however, as to just when this tuition is due. G. S. 1935, 72-2505b, provides that it shall be paid not later than March 1 and July 30 of each year. This is a direction to the county treasurer to pay this tuition on that date. It was' due then. It is the taxes for 1934 with which we are concerned. The first half of these taxes was due December 20, 1934, and the last half on June 20,1935. Since the statute provides that this tuition should be paid not later than March 1 and July 30 of each year the last date on which tuition out of the 1934 taxes was payable was the next date provided for in the statute after the final taxes for 1934 were paid. This would be July 30, 1935. The plaintiff could have maintained its action for the tuition for the school year 1934 at any time after July 30, 1935. The statute of limitations began to run against plaintiff’s cause of action on that date. This action was filed October 1, 1938.
Liability of the county treasurer contended for here is a liability created by statute. (See City of Leavenworth v. Hathorn, 144 Kan. 340.) Such an action can only be brought within three years of the time when it accrued. (See G. S. 1935, 60-306.) Hence this action was barred after July 30,1938.
The judgment of the trial court is affirmed.
Concurrence Opinion
(concurring): I agree that the action was barred by the three-years provision of the statute of limitations as decided by the district court and affirmed by this court. But it should not be inferred that if this particular action had been begun in time it could have been maintained by this plaintiff. If it could, then in any case of erroneous apportionment of a tax levy by a county