86 Kan. 976 | Kan. | 1912
The opinion of the court was delivered by
The controversy here is whether the county or city authorities shall expend a certain part of the money which resulted from a tax levied against the taxable property of Lyon county for constructing and maintaining a county road. Under authority of chapter 248 of the Laws of 1911 the board of county commissioners levied a one-mill tax upon all the taxable property of the county for county roads. Emporia is a city of the second class, with a property valuation of $10,550,000, and under this levy there has
The provisions of chapter 248 of the Laws of 1911 determine the controversy. If the money collected is a ■county fund to be expended by the county commissioners the demand was properly refused. That act is a revision of the road laws of- the state and contemplates the construction and maintenance of a system of county roads by the county authorities instead of the piecemeal plan which formerly obtained and where the •character of the work done on the roads, as well as the amount expended, was left to the discretion of the local -road officers. In The State, ex rel., v. Cowley County, ante, p. 201, 119 Pac. 327, it was said:
“An inspection of this statute carries the conviction that it is a new departure as to the matter of roads and highways, and changes the old system of county roads -at the expense of the local municipalities to one by which certain roads, designated by the county board as •state or county roads, aré to be maintained at the expense of the county, a condition which did not exist previously to the enactment of this statute.” (p. 204.)
The act classifies the roads for which provision is • made as “state roads,” “county roads,” “mail routes” •and “township roads,” and after providing how such roads shall be laid out and designated, it is enacted that “all county and state roads shall be maintained at the expense of the county, and all mail routes and township roads where they do not coincide with county and state roads at the expense of the township in which they are ■situated.” (Laws 1911, ch. 248, § 18.) Mail routes •and township roads are under the supervision of the •commissioners of highways, composed of the trustee,
“The county commissioners of each county may, at the time prescribed by law for levying county taxes, levy a road tax for county and state roads and bridges, of not more than one mill on the dollar on all taxable property in their respective counties and the same shall be collected as are other taxes, and when collected shall be expended upon the building, repair, maintenance and improvement of the state and county roads of such county by and under the direction of the county commissioners and the approval of the county engineer;, provided, that if a majority of the electors voting at an election called for that purpose in such county shall vote to increase the tax levy herein, such board of county commissioners shall levy a tax for road purposed not to-exceed three mills for such road purposes; provided, that the boards of county commissioners shall, within the limit prescribed of one mill on the dollar, keep all state and county roads within their respective counties in first class condition.”
It seems reasonably clear that the legislature intended that the making and maintaining of a county road was a county enterprise, and that the fund for that purpose was to be provided by taxing all the property in the county and that no part of the fund derived from that tax was to be delivered to or expended by city or township officers. The language of the act relating to disbursement is clear and mandatory. It would be-difficult to choose an expression more positive and obligatory than the one which says that the money shall be expended by and under the direction of the county-commissioners and the approval of the county engineer. Counsel for the city claims that section 15 of the act furnishes authority for the expenditure of county road taxes by the city. It provides that cities of the second and third class shall constitute separate road districts, also for the appointment of a street commissioner-whose duties are to be performed in the manner and.
In section 32 it is enacted that all road taxes shall be paid in cash, and that when collected by the county treasurer he shall pay the moneys belonging to the township to the township treasurer and those belonging to the city to the city treasurer, and that each fund so-raised shall be used exclusively for the purposes for which it was provided. The fund in question was raised for making and maintaining' county roads and can not be diverted to any other purpose. The turning over of this fund to the city and township officers to be expended as they should determine would be a relapse to the old system and a defeat of the obvious purpose of the legislature in providing the new plan of constructing county roads. There is no more reason for
The city it seems contributes a large part of this fund, and it is argued that to expend the fund outside the city would be inequitable and unjust. The con■struction and maintenance of county roads is a purely public purpose in which all the people of the county are interested, and the cities to which these trunk roads lead necessarily share in the general benefit resulting from their construction. When the legislature established state roads and imposed the cost of making them upon the counties through which they were built there was resistance by some of the taxpayers, but it was held that the power could be exercised and that the taxpayers in the cities of the county, however remote from the road,-were compelled to pay the taxes levied for that purpose. (The State, ex rel., v. Comm’rs of Shawnee Co., 28 Kan. 431.)
It is competept for the legislature to give the control of the highways of the county, including the streets of cities, to any of its subordinate agencies. It may exercise the power directly or confer it upon county officers, or it may allow the officers of cities and townships to share in the control. (La Harpe v. Gas Co., 69 Kan. 97,
It follows that the peremptory writ asked for must be refused.