11 Kan. 631 | Kan. | 1873
The opinion of the court was delivered by
This is an application made to this court for a mandamus compelling the defendant as county clerk of the county of Harvey to apportion, upon the taxable property situate in that portion of Harvey county which was detached from Sedgwick county, the amount of taxes necessary to pay that proportion of the interest due on the railroad bonds of Sedgwick county which was assigned to the detached territory by the act of the legislature of 1872. (Laws 1872, p. 184, ch. 97, §6.) The defendant raises four objections to the allowance of the writ. He insists that the plaintiff has no interest in the subject-matter of the action. The bonds were issued by the county of Sedgwick, and that body corporate
A second objection is, that “the tax claimed to be due has never been levied or estimated and determined by any competent authority.” The statute reads that “the county clerk of Sedgwick county shall annually certify to the county clerk of Harvey county the amount of taxes to be levied on the territory so detached to pay the interest,” etc., “and the county clerk of Harvey county shall apportion,” etc. This has been done. The objection really is, that the commissioners have not made a levy. This, so far as the detached territory is concerned, is we think unnecessary. The county clerk of Sedgwick county simply divides the amount due for interest or principal by the fraction which measures the separate liability, as provided by the statute, and certifies the
A third objection is, that mandamus is not the proper remedy. It seems to us that it is the proper, if not the only real remedy. It is a ministerial duty which the county clerk has to perform, and it is a duty whose performance is of vital interest to the plaintiff in this action.
The fourth and last objection is, that “the apportionment of the property and indebtedness of the county of Sedgwick, as made by the legislature is inequitable and unjust.” The provision in regard to such division is, that “the territory so detached shall pay the same proportion of said indebtedness as the length of the Wichita and Southwestern Railroad within the county of Harvey bears to the entire length of said railroad between Newton and Wichita.” There is no division of property, nor on the other hand is there any division of indebtedness other than that of railroad bonds. We are not advised as to the amount of property held by Sedgwick county, or the amount of its indebtedness; neither are we informed of the comparative wealth or population of the detached strip, and the balance of the county of Sedgwick. Under these circumstances it is impossible to say that the division is other than just and equitable, even if the matter were not wholly under legislative control. As to the power of the legislature, see Dillon on Munic. Corp., §§ 36, 127, 128, 129, and notes; Cooley Const. Lim., 191,193, and notes. These are all the objections raised by the defendant to the allowance of the writ, and none of them appear to us sufficient.
The peremptory writ must therefore be awarded as prayed, for.